Complying With I-9 Rules After a Natural (or Man-Made) Disaster

[Editor’s Note: This article authored by Jared Leung and Matt Martinez, attorneys in the Immigration Practice Group at Fennemore Craig, P.C. in Phoenix, Arizona.]

Hurricane Sandy wreaked havoc on the East Coast, resulting in a catastrophic loss of lives and property. Our thoughts are with the suffering victims, and we hope everyone can resume their normal lives as quickly as possible. We often advise employers on how to respond to ICE’s audit letters and we conduct training on completing the Form I-9 properly. However, the issue of I-9 compliance following a major disaster is not something employers typically contemplate, much less prepare for.

THE GOVERNMENT’S ADVICE

Although the M-274 Employer Handbook does not address issues relating to how employers should respond to disasters when it comes to completing a Form I-9, the USCIS’ “I-9 Central” website (last updated 1/12/2012) states the following:

Q. If a natural disaster or any other unforeseen occurrence destroys a company’s stored Forms I-9, what should the company do?

A. Employers whose Forms I-9 are missing and/or destroyed as a result of a natural disaster should complete new Forms I-9 to the extent reasonably possible for those employees and attach a memo stating the reason they were redone.

This answer seems clear enough, but what is considered a “natural disaster”? Hurricanes such as Sandy or Katrina would clearly be considered a “natural disaster,” but must the disaster rise to such an extreme level? Would regional flooding be considered a “natural disaster”? Would “disaster” include a fire or a flooded basement where the I-9s are stored? The “I-9 Central” answer uses the express term “natural” disaster. Are we to assume therefore that “man-made” disasters are excluded? For example, what if the fire were a result of arson? Or what if the flooding were a result of bad plumbing? It is not inconceivable that paper I-9s and their records may become irretrievably lost or damaged. Electronically stored documents that have not undergone the appropriate back-up redundancies may also be at risk if the physical location of the data server is vulnerable to a disaster.

BASIC BEST PRACTICE TIPS

ICE, in our experience, has acted reasonably in these situations. Where the loss of I-9s is caused by circumstances beyond an employer’s control, it is likely that ICE would be willing to work with the employer. Given that the I-9 Central website is merely instructive, and in light of the fact that official regulations are relatively silent on this issue, it is very important for employers to approach the post-disaster process reasonably. The following practice tips can help:

1. Safety Must Come First. Employers should first account for the safety of their employees and ensure that their work place is safe.

2. Return to Normalcy. Getting existing employees back to work is critical, as clients need to be serviced and bills need to be paid. After every worker is accounted for and the normalcy of work is restored, the company can address any missing I-9s and determine which ones (perhaps all) need to be replaced.

3. Clearly Inform Employees. Employers should inform all affected employees and provide clear instructions on why new I-9s need to be completed. Employees should be provided with a list of acceptable identity and employment authorization documents. Work with immigration counsel to establish what kind of notations should be made in Section 2 on the Replacement I-9s.

4. Allow Flexibility When Needed. Employees who need to complete a new I-9 should be given a reasonable amount of time to present Section 2 documents. While a minimum of three days is the normal timeline, some flexibility may be required in cases where employees are experiencing difficulties obtaining documents due to a disaster.

5. The Receipt Rule. Where employees must apply for replacement documents, the “receipt rules” should apply.

6. Fitting in E-Verify. A natural disaster likely will not affect the prior, electronic E-Verify record of existing employees because is it stored with the government. However, new employees should undergo E-Verify case initialization where E-Verify is a required part of an employer’s employment verification process.

7. Preparing a Memorandum. The above-referenced tips are dandy, but in the event of an audit in the future, an auditor will still want to know what happened. Employers should prepare a memo documenting the disaster and describing post-disaster processes. An effective memo will:

– Identify the nature and timeline of the disaster – Describe the damage to the employer – Describe specifically what happened to the I-9s – Describe steps taken to identify and replace I-9s, and to notify affected employees

8. Document Retention. It is a good practice to retain an original copy of the memo while ensuring each replacement I-9 is also affixed with a copy.

9. Documenting the Disaster. Maintain other documentation about the disaster such as insurance claims and payouts, photos, news clips, etc. that can be shown to ICE in the event of an audit.

10. Notify ICE Immediately. If an employer receives an ICE Notice of Inspection after experiencing significant I-9 losses due to a disaster, it should communicate that fact to ICE as early in the investigation as possible. We can assume that ICE will be aware of any recent disasters, and unlikely to undertake any significant I-9 audits while employers are still digging out of the devastation.  However, once the dust has settled and investigations begin again, it is the employer’s duty to bring any resulting I-9 deficiencies to ICE’s attention upfront. Trying to explain missing I-9s on the day ICE comes to collect them is not something we recommend.

PLANNING AND PREPARING FOR THE FUTURE

Employers who have already migrated their paper I-9s to an electronic software system may find that physical disasters do not affect their electronic records in the same way. While the market may be populated with many electronic I-9 vendors, a smart electronic I-9 vendor exceeds industry standards for data backup and retention and can easily provide employers with the vendor’s disaster recovery plan for review, upon request. Planning for disasters is an integral step to mitigating risks. Let’s hope you are well on your way to creating a disaster plan but that you never have to implement that plan.

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[Editor’s Note: Jared Leung and Matt Martinez practice exclusively in the area of immigration law. They work with companies to conduct internal I-9 audits in an effort to assess compliance with immigration, employment and discrimination laws, and work with clients to develop hiring policies and procedures. They also assist employers in responding to agency-initiated workplace investigations and in defending against immigration-related discrimination complaints.]