It may be time to take another look at the Immigration and Customs Enforcement (ICE) IMAGE program.  IMAGE stands for “ICE Mutual Agreement between Government and Employer”.  IMAGE was created in 2006 as an initiative designed to encourage employer compliance and strengthen hiring practices in order to curtail the employment of unauthorized workers.

Based on its original design, IMAGE was heavily slanted in favor of the government and gave little to no incentive for employers to join the program.  The original program required an employer to submit to an ICE I-9 audit and be subject to the same penalty structure as non-IMAGE employers.  As of January 2011 only 115 of the over 10 million employers in the U.S. had joined the IMAGE program.

Recognizing the existing IMAGE program to be a dismal failure, the government revamped the program in 2011 and began an educational campaign to give employers information about the new and improved, kinder, gentler IMAGE program.

To be IMAGE eligible an employer is required to:

• Enroll in the E-Verify program;
• Establish a written employment eligibility verification policy that includes internal Form I-9 audits at least once per year; and
• Submit to an inspection of their Forms I-9.

ICE agrees to:

• Waive potential fines if substantive violations are discovered on fewer than 1/2 of the employers I-9s;
• Where more than 50% of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue the minimum fine of $110 per violation;
• Not conduct another Form I-9 inspection of the company for 2 years; and
• Provide information and training after the inspection.

So, should you consider the IMAGE program for your business?  Opening your doors to the government can be a scary prospect and it is certainly not a decision to be taken lightly.   It is a good idea though to follow the government’s advice even if you choose not to participate in the IMAGE program.

Having a written company compliance plan is smart business and may very well help establish that your company takes Form I-9 compliance and employment eligibility verification seriously.  Conducting an internal audit will help you establish your current level of compliance, correct some mistakes, and establish a training program to move forward with stronger procedures.  These are all best practices to protect your business and mitigate the risk penalties during an ICE investigation.

Whether or not you decide to join in a partnership with the Federal government it is absolutely appropriate for you to heed their advice when it comes to addressing your Form I-9 policies and procedures.

Everything Old is New Again

The Social Security Administration (SSA) has resumed the sending of Social Security No-Match letters to employers.  These “No-Match letters”, also known as Decentralized Correspondence (DECOR) letters have been around since 1979 but were suspended in 2009 after the controversial DHS “No Match Rule” was rescinded.

The SSA had been sending these letters to employers when information provided by the employer did not match SSA records.  Though the letter may be daunting, it is possible the name and SSN combination cannot be matched for a variety of reasons including misspellings, transposed numbers, name changes or incomplete information provided by the employer. Unfortunately, mismatches may also be due to the use of false SSNs or identity theft.

On April 6, 2011, SSA resumed sending no-match letters to employers when the names or social security numbers listed on a W-2 form do not match SSA records. The purpose in sending these letters is to inform the employer and employee there is a database discrepancy which may affect future Social Security benefits.

The DECOR letter makes no statement about an employee’s immigration status and cautions employers that the letter is not a basis in itself to take any adverse action such as suspending or firing the employee.  A FAQ on the SSA website provides advice for employers in dealing with the no-match letter.

The letter also includes a “Privacy Act” notice which informs the employer the SSA may share the information with the IRS for tax purposes or with the Department of Justice. In addition, the Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) published revised guidance regarding how employers can respond to no-match letters in November 2010.

Upon receipt of a No-Match letter, an employer should proceed cautiously with the assistance of qualified counsel.

Final Rule –- Finally Final!

On April 14, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule that adopts the changes made to the Form I-9 process by the Department of Homeland Security in April 2009.  These changes to the Form I-9 went into effect in April 2009, including the rule that employers can no longer accept expired documents as proof of identity or work authorization when completing the form.

On December 17, 2008, DHS published an interim rule which included the following changes:

• Prohibits employers from accepting expired documents in Section 2;
• Removed Form I-688, “Temporary Resident Card,” and Forms I-688A and I-688B, “Employment Authorization Cards,” from the Lists of Acceptable Documents ;
• Added to List A the new U.S. passport card and  the temporary Form I-551, “Permanent Resident Card,” with a machine-readable immigrant visa;
• Added documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) to List A to more accurately reflect their status under the Compacts of Free Association;
• Amended the Form I-9 (Rev. 02/02/2009) to provide in Section 1 a separate box for noncitizen nationals.

The current version of the Form I-9 bears the expiration date of 8/31/12.

As is apparent with the new “old” rules and procedures, employers must stay vigilant to remain compliant with Form I-9 processes.  Implementing a comprehensive approach to I-9 compliance which includes formal training, written compliance policies, regular assessment audits, and the assistance of qualified specialists can help an employer navigate the complex process which is I-9 compliance.

Your company’s image is one of your most important assets. It is likely you have spent years and tens of thousands of dollars, maybe even millions, developing your brand. It is likely that you have a marketing plan and budget.  It is likely you spend a lot of time and energy developing your products and services to exceed your customer’s expectations.

What if It All Comes Crashing Down?

What if one day, it all goes terribly wrong? Ask Toyota. Their marketing plan shifted suddenly from promoting their products to damage control due to a very public defect in their cars was discovered. Hundreds of millions of dollars later, their reputation as “the” quality car maker has been irreparably damaged. They are now on a mission to repair the consumer’s trust it took them decades to earn.

What Does this Have to do with Form I-9 and Immigration Compliance?

Ask Chipotle. In the wake of an ICE (Immigration and Customs Enforcement) I-9 document inspection in Chipotle Mexican restaurants in Minneapolis, the restaurant chain fired hundreds of workers. The firings prompted protests in 9 states where protesters chained themselves together in restaurants and carried signs. According to Fox News9 in Minneapolis, 8 people were arrested during the protest in the Minneapolis restaurant.

As the immigration debate rages on and ICE continues its aggressive I-9 enforcement strategies, employers are at greater risk of this kind of negative publicity. The importance of 100% Form I-9 compliance is illustrated over and over again. The employer is responsible for completing the Form I-9 timely and accurately, updating the form when required, and retaining the form in accordance with the law.

The very sad fact is most companies get it wrong…even the ones who believe they are complying with Form I-9 requirements are not. If you haven’t had a qualified expert review your I-9 process, I can almost guarantee your company is at risk. Are you willing to bet your reputation on it?

Independent 3rd Party Form I-9 Audit

ICE considers an expert 3rd party Form I-9 audit a “Best Practice” in an employer’s effort to achieve full compliance. Failing to plan is planning to fail. What will happen if you “fail” an ICE inspection? Perhaps Chipotle’s mistakes will be the catalyst that drives you to seriously focus on your company’s Form I-9, Employment Eligibility Verification compliance and hire the right expert to assess your compliance efforts.

To discuss your particular situation with a Form I-9 professional, take advantage of I-9 Okay’s FREE 15 minute consultation.  Call 1-866-580-9390 today.

While you may be a very capable Human Resources expert concerning Form I-9 issues, what if your predecessor was not?  Your company may be at tremendous risk because ICE auditors will not only look at your current I-9 forms, but will also request all of your terminated employees’ forms for the past 3 years.

How many costly I-9 compliance mistakes have been made that you may not be aware of?  We encourage you to take a look at your I-9 files on a regular basis.  You may be shocked at what you find.

If you have inherited an I-9 mess, it may be quite difficult to take those concerns to your boss.  However, you must take a proactive approach to make a good-faith effort to correct the documentation in order to avoid serious government fines.

Form I-9 Compliance Action Steps

1. Realize the Form I-9 is not as simple as it may appear and that fines for basic clerical mistakes start at $110.00 per form, per employee.
2. To help your boss understand the serious consequences of Form I-9 violations, emphasize employment eligibility verification is a legal requirement and non-compliance could result in substantial fines for the company.  The best way to avoid disaster is to focus on a full scale clean up of company I-9 procedures.
3. Get help!  You probably wouldn’t think of auditing the company’s tax records by yourself and you certainly should not consider auditing I-9 compliance by yourself. Over the years, the requirements of the Form I-9 have changed and it is important that any retroactive attempt at compliance be done within the constraints of the law.
4. Consider electronic completion and storage options.  This may be the best approach to cleaning up the I-9 mess in your file cabinets.
5. Identify and document “best practices” for moving forward in full compliance.  A qualified I-9 specialist can help develop the right procedures and practices for your business.

The times they are a changin’….

As President Obama pushes to reform the current immigration system, employers are under increasing pressure to follow Federal law requirements concerning hiring authorized workers while at the same time carefully monitoring State employment eligibility law as well.  Many people are following the debate about Arizona’s new immigration legislation while in South Carolina, one of the toughest employer sanctions laws in the country has slid in under the radar and gone mostly unnoticed by anyone not doing business in the state.

Employers across the country should be paying very close attention to Form I-9 requirements and E-Verify laws.  In just the last few months, several significant changes have taken place that impact how employers verify the identity and work eligibility of the people they hire.

• A newly redesigned Green Card (Permanent Resident Card).
• Changes to the Employment Authorization Document to increase document security have been implemented.
• E-Verify has been redesigned and new tools have been added.

E-Verify and the “Hire Date”

Perhaps the most significant change is what is being termed the “Thursday Rule” which now gives employers until the 4^th business day to utilize E-Verify.  Until recently the directive has always been 3 business days from the date of hire.

Amid this flurry of change, the Office of the Special Counsel for Immigration Related Employment Discrimination (OSC), had been actively investigating complaints against employers accused of improper use of the Form I-9 and/or E-Verify during the hiring process.  Morton’s Restaurant, Garland Sales, and even Macy’s department store have been accused of identity document abuse by asking new hires to produce more documents than are required for the completion of the Form I-9.

What once seemed to be just one more piece of paper to keep on file is now an albatross around every employer’s neck.  Failing to give the I-9 the attention it demands is costing businesses thousands of dollars.  Many employers mistakenly believe it is enough to have an I-9 on file for every employee.  These employers will ultimately pay the price. Since April 2009, ICE (Immigration and Customs Enforcement) has fined employers over $17 million for non-compliance based on technical and clerical errors on the Form I-9.

Many of these errors could have been identified prior to the ICE inspection had the company obtained an independent 3^rd party audit by a qualified I-9 specialist. An independent 3rd party audit is one of the best tools an employer can utilize to insure complete Form I-9 compliance.  By using an expert independent 3^rd party auditor, a business can take a proactive approach to correcting costly errors, identifying areas of non-compliance, and protecting their business against claims of discriminatory hiring practices.

It is time for every employer to wake up and realize the Form I-9 requires the same attention that tax forms and other legal and compliance issues require.  Failing to use an experienced Form I-9 specialist to assist your company in obtaining 100% compliance is putting your business at unnecessary risk of huge financial penalties as well as a public relations nightmare.   Don’t let the negative results of an ICE inspection of your company be the lead story on your local news!

The immigration debate is a hot topic.  Arizona recently passed controversial legislation causing an outcry from both sides of the debate.  Racial profiling, unlawful search and seizure and discrimination are just a few of the terms being bantered about.   Why should this matter to anyone who doesn’t live in Arizona?

It is hard to argue the current immigration system is not broken and I hope people a lot smarter than me are working on solving the problem.  For now, we must live with and work with the system that is in place.  A large piece of the illegal immigration puzzle is the Form I-9, Employment Eligibility Verification.

Using the Form I-9, every employer has the responsibility under the law to verify both the identity and work authorization of every person they hire regardless of that person’s citizenship status. This means filling out the I-9 form for every person hired and inspecting ID and work eligibility documents provided by the new employee.

Of course when the original Form I-9 process was developed in 1986, the ability to easily, quickly, and cheaply produce fake documents was not a huge concern.  However, in the current environment, technology is readily accessible to produce authentic looking documents in a very few minutes.

How Can an Employer Be Sure About the Work Eligibility of Who They Are Hiring?

The answer is “they can’t be sure” – and the law does not require that they are sure.  In fact, there are consequences for employers who refuse to accept documents if they appear to be genuine.  There are also penalties for employers who require certain employees to provide more documents than are required by the I-9 process.  Anti-discrimination laws protect employees from employers who may treat them differently because they sound or look foreign or have a foreign sounding name.

The government is providing more tools for employers to use to help them avoid hiring mistakes.  E-Verify for employers is an electronic verification system run by the Department of Homeland Security in cooperation with the Social Security Administration.  It is free to all employers.  Using information provided on the Form I-9, the employer can access the E-Verify system and check the work authorization of new hires.  Results are returned within a few seconds.

Of course, no system is perfect and E-Verify does not recognize identity theft in about 50% of the cases.  If someone has stolen another person’s identity, E-Verify only “knows” that identity is authorized to work – it cannot determine the person sitting in front of you is not that person.  For the system to work more perfectly, it would need to maintain a current photo of every person in the U.S. and match that information to the employee.  It is doubtful we will see that in the near future.

What Should a Well Intended Employer Do About Employment Elibigility Verification?

• Complete the Form I-9 at the time of hire for every new employee.
• Be sure the employee completes Section 1 carefully and accurately.
• Use the List of Acceptable Documents from the I-9 and carefully inspect the documents provided by the employee.  Record the document information accurately and completely in the document lists in Section 2.
• Use E-Verify for every new hire.
• Treat every person you hire the same, regardless of their name or appearance.

Proper completion and maintenance of the Form I-9 is the best tool currently available to employers to help them hire a legal work force. It isn’t perfect by any stretch of the imagination but it is what we have and it is the law.

On May 11, 2010, USCIS (U.S. Citizenship and Immigration Services) announced it will begin issuing a “new and improved” Permanent Resident Card, which most of us know as the Green Card.  In a moment of genius, the designers of the card decided to make it green in color for ease of recognition!

The new Permanent Resident Card incorporates state-of-the-art technology to prevent counterfeiting and facilitate accurate authentication. USCIS will now issue all Green Cards in the new, more secure format.  Recipients of the redesigned Permanent Resident Card will include those newly approved lawful permanent residents, as well as those who get a renewal or replacement card.

Although this seems to be a positive step in decreasing incidents of identity theft and document fraud, it creates more uncertainty for employers.  It becomes the employer’s burden to identify legitimate documents when many employers are not familiar with every version of the Green Card issued over time.

There have been several versions of the Green Card issued over the years.  The first Green Card was issued in 1946 and was referred to at that time as an Alien Registration Receipt Card.  Few of these are still in circulation; they contain no expiration date and as of March 20, 1996 are no longer valid evidence of permanent residency.  Other versions of the Resident Alien Card were issued in 1977 and again in 1989.  Neither the 1977 card nor the 1989 were green in color.

In 1997, the card was renamed to Permanent Resident Card and updated yet again in 2004.  Each time the card was updated, additional security measures were added. As for the most current version issued just this week, holders of older cards will only receive the redesigned Permanent Resident Card when seeking a renewal or replacement card.

Employers should choose to work with a qualified expert to help them navigate the complex requirements of the Form I-9.  Inspecting work authorization and identity documents is an integral part of meeting your responsibility to verify the work eligibility of each person you hire.  The experts at I-9 Okay have reviewed thousands of employee identity documents and are ready to assist you with all of your Form I-9 and E-Verify needs.

Most of you have heard about E-Verify for employers but you may not be paying close enough attention because you don’t think it is something you need to think about.  Well, you might want to think again!  The federal government already requires employer’s with federal contracts to use E-Verify for any employee assigned to the contract. Many states are passing laws requiring employers to use E-Verify and many more state have legislation pending.

As of today, 16 states require E-Verify in some capacity.  Arizona, Utah, South Carolina, and Mississippi require all employers to use E-Verify.  Idaho, Colorado, Nebraska, Minnesota, Missouri, and Georgia require state agencies and employers with state contracts to use E-Verify.  Virginia and North Carolina require state agencies to use E-Verify and several cities and municipalities have passed their own legislation.

E-Verify uses the Department of Homeland Security (DHS) and the Social Security Administration databases to verify employment eligibility to work in the United States.  After signing up to use E-Verify, the employer inputs information gathered on the Form I-9 into the E-Verify system to confirm the work eligibility of an individual in just a few seconds.  Unfortunately, the process of signing up and receiving approval for E-Verify can be cumbersome…but there is a simple solution.

An employer may contract with an E-Verify Designated Agent to utilize the federal database without having to go through the hassle of signing up, taking the training, and passing the mastery test.  An E-Verify Designated Agent is authorized to use E-Verify to check the employees of any company, with their permission of course.

Using a Designated Agent is a good solution for companies that don’t want to spend valuable resources on an administrative task.  It is a great solution for HR departments that are already stretched to the limit and can’t begin to think about adding one more thing to their busy schedules.

I-9 Okay is an E-Verify Designated Agent.  We are able to assist companies, large and small, with all of their E-Verify and Form I-9 compliance concerns.  E-verify has very specific rules of use…what you don’t know could hurt your company. The E-Verify specialists at I-9 Okay are experts in helping employers navigate the complex rules concerning E-Verify requirements and Federal contracts. Contact us today.

The days are longer, the nights are warmer, and the tulips and daffodils are poking up their little heads. Spring has sprung and for many of us that means it’s time for some good old fashioned spring cleaning.  Many of us will spend time sweeping away dust and cleaning out the junk drawer.  If you are a business owner or human resource professional, I’d like to encourage you to take a good hard look at your employee hiring process.  It may be time for a little sprucing up when it comes to I-9 compliance.

Which Version of the Form I-9 is Acceptable?

All employers are required by law to verify the identity and employment eligibility of their employees using the Form I-9, Employment Eligibility Verification.  Most of you already know this.  However, many times when we go into a business to conduct a Form I-9 review, we find the employer using expired I-9 forms for their new hires.  An employer must always use the most current version of the Form I-9.  The most current version of the Form I-9 was revised 8/7/09 and has an expiration date of 8/31/12.  No other I-9 form is considered valid for new hires to complete.  During your spring cleaning, go through your blank forms and discard any expired I-9 forms.

What’s Your Company Form I-9 Retention Policy?

It may be time to go through your terminated employees’ I-9 forms and destroy those that have exceeded the retention requirements.  Remember, you are required to keep an I-9 form for the entire term of employment, plus 1 year after the date of termination or 3 years after the date of hire, whichever is a longer period of time.  If you do not have a company policy or procedure in place for dealing with archived I-9 forms, spring is the perfect time to develop one.

Many States have passed their own Form I-9 and/or E-Verify regulations.  Check with your state’s Department of Labor to be sure you are complying with all state imposed laws.

Conducting an independent 3^rd party review is an excellent way to make a clean sweep of issues, errors, and omissions that will be costly if your company is selected by Immigration and Customs Enforcement for a worksite inspection.  Often times, an independent auditor will identify an issue that is a simple fix and will ultimately save an employer thousands of dollars and many headaches.

Summer will be here before you know it and won’t it be nice to relax on the beach somewhere without worrying about your company’s I-9 forms!

The Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) is actively monitoring potential employer misuse of the E-Verify system.  “Employers can expect more investigations into E-Verify misuse from the OSC,” says Ryan Adair, MSEC, Manager of Immigration Services. “These investigations are time consuming and expensive to defend.”

E-Verify is the online system that allows employers to verify work eligibility of new employees using information gathered on the Form I-9.  The focus of the OSC is to hold employers responsible if they misuse E-Verify.  Employers who misuse E-Verify will face fines, may lose their federal contracts, and may be debarred from the bid process on future federal contracts.

To avoid trouble with OSC employers should use E-Verify only according to the guidelines provided by the program and avoid using E-verify to:

• prescreen job applicants.
• verify work eligibility of current employees (unless a federal contract expressly requires E-Verify usage on existing employees).
• selectively check employee work eligibility based on citizenship status or suspicion that an employee may not be authorized to work in the U.S.

E-Verify states employers may not:

• terminate or take other adverse action based on an E-Verify tentative non-confirmation.
• ask an employee to obtain a printout or other written verification from the Social Security Administration confirming that the employee visited the office.
• ask an employee to provide additional documentation after receiving a tentative non-confirmation for the employee.

Employers should ensure they know the E-Verify rules and follow them. What you don’t know may cost you!