Over the past two years, federal laws and policies related to citizenship and immigration enforcement have had several changes. HR and legal teams have had to struggle to keep up to date on changes specifically related to I-9 and E-Verify on the federal level, but also applicable changes in state laws. Companies must implement a process for state-specific onboarding forms that will also meet federal requirements.
Here, we’ll recap the most critical changes to I-9 and E-Verify, with particular attention to increased I-9 audits and enforcement as well as the return of Social Security no match letters – two areas that could potentially be very costly for any employer if the law is not followed to the letter.
In mid-2017, US Citizenship and Immigration Services (USCIS) released a revised version of Form I-9, Employment Eligibility Verification. Employers were allowed to use the revised version or continue using Form I-9 with a revision date of 11/14/16 through Sept. 17, 2017. On Sept. 18, 2017, employers must use the revised form with a revision date of 07/17/17. The revisions to the form related to USCIS’s List of Acceptable Documents and specifically updated List C to reflect the most current version of the certification or report of birth issued by the U.S. State Department. Employers completing the Form I-9 on a computer are able to select the newly added Consular Report of Birth Abroad Form FS-240, which is issued to certain employees born overseas to a U.S. citizen parent. While these revisions were minor, it’s important that employers are aware of even subtle changes to the I-9, especially if they are still using a paper form.
Increased I-9 audits and enforcement in 2019 and beyond. In December of 2018, Immigration and Customs Enforcement (ICE) announced that it would increase work site Form I-9 audits by 400 percent. Shortly thereafter, 77 California businesses and over a hundred convenience stores were raided by ICE agents, seeking full access to employee Form I-9s. Civil penalties for knowingly employing unauthorized immigrants can range from $548 to $21,916 per violation. Repeat offenders and companies hiring a larger number of undocumented employees receive fines that are on the higher end of the range. Criminal penalties for employing undocumented workers can result in monetary fines and possibly jail time.
E-Verify, a free electronic service administered by USCIS, cross-references an employee’s Form I-9 information with government records to confirm his or her work authorization. E-Verify should only be used on new hires and should not be used to verify the immigration status of a job applicant or a current employee. E-Verify remains voluntary for most companies. However, as part of the new restrictions to immigration and heightened enforcement, President Trump and the Department of Homeland Security have pushed for a nationwide mandate to use the service.
A growing list of states have enacted laws mandating or encouraging its use. As of the end of 2018, they include:
In March of this year, after a seven-year hiatus, the Social Security Administration (SSA) returned to the practice of notifying employers when W-2 records don’t match employee Social Security numbers. This is a warning to employers to carefully check the employee’s information. The problem could be as innocent as a typo or as serious as a stolen identity. The SSA gives employers an overview of frequently asked questions and steps to take upon receiving a mismatch letter, also called an “employer correction request notice.”
From the SSA:
In March of 2019, we began mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match our records. The purpose of the letter is to advise employers that corrections are needed in order for us to properly post its employee’s earnings to the correct record. There are a number of reasons why reported names and SSNs may not agree with our records, such as typographical errors, unreported name changes, and inaccurate or incomplete employer records.
There are a few tricky things for employers to be aware of. It’s important to note that the letters don’t include the names and Social Security numbers of employees with mismatched SSNs, as they had in the past. Employers must register online with the SSA’s Business Services Online (BSO) to find out whose SSNs are mismatched. If an employer learns of SSN mismatches and does nothing, then U.S. Immigrations and Customs Enforcement (ICE) may consider the employer to have “constructive knowledge” that it has an unauthorized worker. But if employers take adverse action against an employee based solely on no-match letters, they may be sued for discriminating against the worker based on citizenship.
I-9 forms should be stored separately from other personnel files. It’s recommended that employers have a reminder system to re-verify all employees who present work authorization that bears an expiration date and to accurately dispose of old forms. Employers must retain original I-9 forms for three years after the date of hire, or one year after the date employment ends, whichever is later. Employers may complete or retain I-9 forms in an electronic generation or storage system for as long as the system has reasonable controls to ensure integrity, accuracy and reliability of the data.
One note about I-9 forms: USCIS allows electronic signatures if the employer wishes to complete I-9 forms electronically. The system must:
Employers must have a completed Form I-9, Employment Eligibility Verification, on file for each person on their payroll (or otherwise receiving remuneration) who is required to complete the form. Employers must keep completed I-9 Forms for a certain amount of time after their employees stop working for them. Never mail Forms I-9 to USCIS or U.S. Immigration and Customs Enforcement. Once an employee no longer works for the employer, the employer must determine how much longer to keep the employee’s Form I-9.
To calculate how long to keep an employee’s Form I-9, use the following formula:
|1. Date the employee began work for pay||1. ________________________|
|A. Add 3 years to the date on line 1.||A. ______________________|
|2. The date employment was terminated||2. _______________________|
|B. Add 1 year to the date on line 2.||B. _____________________|
|3. Which date is later; A or B?||3. _______________________|
|C. Enter the later date.||C. _____________________|
The employer must retain Form I-9 until the date on Line C. You may also retain the instructions and Lists of Acceptable Documents pages. Forms I-9 may be stored on paper, microfilm, microfiche or electronically.
The current administration has directed unprecedented resources to enforce existing immigration and employment laws. This means that the government is watching employers closely and won’t hesitate to investigate for any reason. It’s important to reevaluate I-9 compliance procedures frequently to remain compliant. Many companies choose to use a vendor partner to dramatically reduce the risk for government audits related to immigration and citizenship verification. Cisive’s I-9/E-Verify solution offers technology and integration with electronic Form I-9 completion to complete E-Verify submissions through an interface with the Department of Homeland Security (DHS).