Recently, the government imposed penalties of over $11 million against a major national retailer over the hiring of illegal immigrants. Illegal immigration has become a controversial issue in the current political and security environment and companies of all sizes across the country have found themselves in the thick of it the target of government immigration raids resulting in deportation of employees, stiff fines and penalties, and even in some cases, criminal charges filed against corporate executives. The government has placed employers at the center of the drive toward more comprehensive immigration enforcement, regardless of whether they knowingly hire ineligible employees or not. The stakes are higher than ever before for human resources professionals to understand the laws surrounding employment eligibility and to maintain a system to verify that every employee is legally permitted to work in the U.S. It is incumbent on human resources to keep the organization in total compliance with complex and seemingly ever-changing immigration law.
At the heart of employment eligibility compliance today is the E-Verify database created by the Department of Homeland Security (DHS), the U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA). E-Verify is an online database of all individuals who can legally work in the U.S. as either citizens or as legal immigrants. It was created to enable employers to verify the employment eligibility status of each worker. In addition, because of its availability, the government is able to hold employers accountable for the legality of the employees hired.
Historically, the process for confirming a new hire's legality to work in the U.S. has been as simple as the completion of a paper I-9 form and the review of identification documents, such as a driver's license, social security card, passport, green card or work visa, among others. To maintain I-9 compliance, employers have always been required to ensure proper completion of the form and accompanying documentation, appropriate record keeping and storage of the data, and provide ongoing management to ensure that data is kept up to date and expired documents are tracked and acted upon in a timely manner. This process has traditionally been very manual, paper-intensive, error-prone, inefficient and difficult to manage.
E-Verify is a critical addition to the management of the I-9 form process because it enables employers to verify electronically that the information the employee has provided is, in fact, valid. In addition, there are new regulations that allow for the electronic storage and record-keeping of this information, greatly simplifying the procedure. With the availability of E-Verify, however, come new state and federal regulations that employers must understand.
Legislation
The E-Verify database is an important component of a number of high-profile immigration reform bills on both the state and federal levels. A recent executive order requires that all federal government agencies use the DHS E-Verify system to screen all employees and pending legislation aims to expand that requirement to all organizations with federal contracts. Also, some states have already passed immigration legislation that specifically includes requirements to verify employment eligibility through E-Verify and several more states are currently considering such legislation. Employers must comply with both federal regulations and the legislation of every state in which they have employees.
For example, North Carolina recently mandated that all state agencies and universities use E-Verify; Oklahoma and Colorado legislation currently requires E-Verify screening by all state agencies and employers with public contracts with state agencies; and Arizona requires screening through E-Verify be conducted by every employer operating in the state. In addition, several states, such as California, have proposed legislation that would require that all state contractors screen employees through E-Verify.
In addition to mandating the use of E-Verify, some state legislation stipulates financial consequences or rewards related to the use of the system. For example, Arizona legislation includes progressive fines for violations and severe sanctions for non-compliance, while Georgia offers tax exemptions for employers who opt to use E-Verify.
Further complicating matters is that some state legislation may be contradictory to federal mandates and/or to the laws of other states in which an organization does business. For example, while there is a federal mandate in place for all government agencies to check employment eligibility through the E-Verify database and there are several state laws requiring its usage, Illinois has passed legislation making the use of the E-Verify database illegal until the federal database can deliver a 99 percent accurate evaluation of an employee's legal status within three days. This is a difficult situation for government agencies in Illinois or for organizations that have employees in other states where the use of E-Verify is mandated. Because of these ever-changing complexities, it is important for organizations to understand the current legislation or work with a partner that does, in order to navigate the legal requirements appropriately.
Best Practices
There are several best practice steps that organizations should follow to build and maintain an effective and compliant I-9 program.
Electronic management of the process is important for ensuring data security, efficient record-keeping, reducing errors and tracking and updating of required information. An electronic I-9 form, complete with an instant and automated E-Verify check is critical for a compliant I-9 management program. An electronic I-9 solution reduces data entry errors and ensures the information is completed correctly and completely. Federal legislation now allows for the use of electronic signatures and the computerization of the process, including electronic completion of the form, scanning of appropriate accompanying documentation and electronic data storage. Effective electronic systems include alert and notification features for required updates on expired documents. Searching and reporting capabilities enable better program management and quality assurance. For additional efficiencies, the I-9 program can be integrated with the organization's employment screening program to leverage existing data and systems and to streamline processes.
From a procedural standpoint, organizations must establish that the first step of the system is that newly hired employees are walked through the completion of an I-9 form so that the correct information and documentation is obtained for verification. An electronic system can do this by guiding employees through the document field by field.
It should also be standard procedure to have the employment eligibility of all new hires confirmed through the DHS E-Verify system. In situations where the E-Verify check is returned with a tentative non-confirmation of the employee's legal work status, organizations must have a procedure in place to manage the resolution process. This procedure should include steps for helping the employee identify and clear up any possible mistakes, or if it turns out the employee is ineligible for employment, a proper termination process should be in place.
Once an employee's eligibility is confirmed, it's important to set up notifications in the system to alert the human resources department to work authorization expirations and required updates, so that employers can address these procedures, obtain new documents as needed and keep the employment records current.
To guard against fraud and help confirm employee identity, an additional security step is to check the individual's social security number against the death index and to verify that the number provided has actually been issued to that person. E-Verify will validate a new employee's social security number. In addition to its primary use for establishing employment eligibility, verifying legal work status through the E-Verify system can help companies detect any use of false documentation.
One common mistake that organizations can make is to neglect the extended workforce when developing the I-9 program. This represents a major security gap for many organizations. Temporary and part-time employees must also be screened through the I-9 system. These non-traditional workers often make up a valuable portion of an organization's workforce and it's important in ensuring business continuity that they are compliant with current regulations as well. When it comes to vendor employees, companies may not conduct the E-Verify screens themselves on anyone who is not a direct employee. Instead, it is imperative that companies take the responsibility to require that all of their vendors use E-Verify on their employees. Companies should also implement a means of tracking that vendors are complying with their screening requirements. One way to do this is to develop an extended workforce screening program that has a built-in requirement that company access badges are not provided until the vendor employee has cleared the screening and employment eligibility processes.
A final ongoing process employers should implement is to conduct annual audits of the I-9 program to ensure it continues to meet all current state and federal regulations as well as corporate management and security requirements. An audit of all of the year's I-9 forms should also be compared with the employment rosters to confirm the completion and accuracy of data. As the legislation governing E-Verify and the I-9 process evolves at both the national and state level, I-9 procedures will have to evolve as well, so regular audits allow companies to evaluate their systems and alter the programs as necessary. The audit of the forms themselves will ensure that the forms have been properly and accurately completed, and will allow the company to identify any individuals who may have erroneously slipped through the cracks and not been properly screened through E-Verify.
Conclusion
As the complexity of employment eligibility regulations are increasing and the penalties are becoming increasingly stringent, it is more important than ever for organizations to understand the management, legislative and security issues surrounding I-9, and implement a comprehensive I-9 program to meet these demands.
