Get those I-9s in order before ICE visits you . . .

You may have heard about Abercrombie & Fitch’s run in with Immigration and Customs Enforcement (ICE).  If you are an employer, you’ll want to learn from their very expensive audit experience . . .

According to an ICE news release, a 2008 audit of Abercrombie & Fitch’s Michigan retail stores uncovered “numerous technology-related deficiencies” in their electronic I-9 verification system. Despite full cooperation on the retailer’s part and no instances of the knowing hire of unauthorized aliens, the company was fined $1,047,110 for “violations of the Immigration and Nationality Act related to an employer’s obligation to verify the employment eligibility of its workers”. Ouch!

Brian M. Moskowitz, special agent in charge of ICE’s Office of Homeland Security Investigations for Ohio and Michigan said, “This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.” He adds, “Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance.” And ICE is getting very serious about compliance. The number of audits rose from 500 in 2008 to more than 2,000 in 2011.

So what do you have to do to keep your company compliant? It all centers on those I-9 forms:

  1. New hires: Employers must require a fully completed I-9 for all new hires within three days of their first day of work.
  2. Proper storage: I-9s must still be retained and stored in either paper, electronic, or microfilm/microfiche format. It is recommended that you securely store these forms separate from personnel files. This will allow you to present them to government officials for inspection within three days of the date on which the forms were requested, as required by law.
  3. Proper maintenance: Employers should keep a properly completed I-9 form for all current employees. Regular self-audits should be conducted to ensure compliance. If any forms are incorrect or incomplete make the needed corrections or additions as soon as the oversight is discovered.
  4. Handling expired documentation:
    1. Never accept expired documentation.
    2. Do not allow an employee to work with an expired work-authorization document. Instead, re-verify expiring work authorization documents before they expire (see below for more details about re-verification).
    3. Do NOT re-verify U.S. passports or passport cards, Permanent Resident or Resident Alien Cards, or any other List B identity document.

According to the U.S. Citizenship and Immigration Services (USCIS), if an employee presented a valid, current Permanent Resident Card (form I-551) for section 2 of the I-9 form when they were hired, it is not necessary to re-verify their resident status when that card expires. Expiration of their “green card” does not revoke their permanent resident status.  However, it is highly recommended that the employee renew the expired card. Without a current Permanent Resident Card, their ability to travel and to verify their eligibility to work in the U.S. is obviously jeopardized.

So when does an employer need to re-verify an employee’s eligibility to work? According to the USCIS website, “When an employee’s employment authorization or employment authorization documentation (in most cases) expires, an employer must re-verify that the employee is still authorized to work.” Employers accomplish re-verification by completing section 3 of the employee’s I-9 form. It is best to remind employees, at least 90 days before the date re-verification is required, that they will need to present documentation showing continued employment authorization on the date that their employment authorization or original documentation expires.

The easiest and quickest way to verify the eligibility of new hires is using the internet-based system called E-Verify. And it’s free. With a completed I-9 form and the new hire’s social security number, an employer can determine eligibility within seconds. This system does not replace the legal requirement to complete and retain those I-9 forms, but it’s one more (simple) way to ensure legal compliance and avoid costly mistakes.

For more information about E-Verify, or for directions for renewing green cards or re-verifying an employee’s eligibility to work, visit the U.S. Citizenship and Immigration Services website at www.uscis.gov.

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