Defining Compliance: More than Just Form I-9 and E-Verify

For the past few years, we’ve been on a mission to define what I-9 and E-Verify compliance looks like.  We’re still on that path….  Today, as part of the Carnival of HR experience, we’re highlighting how others in the HR industry define compliance in their own respective fields.

What Does Compliance In Other Fields Look Like?

Nancy Saperstone writes for Insight Performance on how HR compliance has become a big source of revenue for some, in recent years and warns of the dangers, even for small organizations, of going bankrupt as a result of failure to comply with HR compliance rules.  For Lois Melbourne, of Acquire, compliance begins with noticing the byte-size details.  Accessing accurate and timely reports on various HR processes makes compliance possible. Andrew Tarvin raises a funny question about compliance in his Humor That Works blog.  When would humor get you in trouble in the workplace and what compliance issues are raised?  The answers aren’t always so clear. Melissa Fairman brings a bit of levity in HR reMix when discussing how compliance can sometimes be the root of bureaucracy. Ian Welsh asks his readers, “Compliance!  What is it good for?”  The answer isn’t so exact and may surprise many.

In a similar vein, Linda Fisher Thornton, of Leading in Context discusses why laws aren’t enough when it comes to compliance in the workplace.  Find out what else she says is needed for executive leadership. For the HR Introvert, Tim Gardner discusses the challenges confronting HR professionals.  When compliance is meant to protect worker safety, it’s a tough job when you have to enforce the rules. Read how others manage a different kind of government audit in Ben Eubanks’ UpStart HR blog.  The similarities are eerie….

I-9 and E-Verify Compliance Generally

For the uninitiated HR professional, the Form I-9 and the E-Verify System may seem quite innocuous and simple, until you actually start managing the process.  Ever since U.S. Immigration and Customs Enforcement began shifting its enforcement strategy by penalizing U.S. employers for (essentially) paperwork deficiencies on the Form I-9, many employers have started to get nervous.  With the increase in the enrollment of the federal E-Verify Program, enforcement efforts will likely expand to non-compliant use of E-Verify. Why is there such a hubbub about the two-page Form I-9?  How much in fines have employers had to pay?  How do you “properly” fill out a Form I-9?  How do you properly correct one?  Can U.S. Employers really “get in trouble” if E-Verify is used incorrectly?  How would the U.S. Citizenship and Immigration Service (USCIS) even know if an employer was using the E-Verify system in a non-compliant way?   What are the penalties? Not surprisingly, the increasing ICE enforcement actions in the past ten years have essentially created a new practice area for attorneys.  With the new revised Form I-9 and sometimes conflicting guidance from the government, employers are increasingly turning to experienced legal counsel for advice and much more.

Form I-9 Compliance (Specifically)

Employers are quickly finding out I-9 Compliance is much more than meets the eye.  In fact, they are often turning to experienced attorneys to assist in the following ways:

  • Provide customized Form I-9 training;
  • Provide I-9 training to new HR professionals;
  • Give guidance on how to maintain Form I-9 and supporting records;
  • Advise on Form I-9 completion for foreign workers (STEM extensions, H-1B cap-gaps, H-1B portability, SEVIS entries, TPS, etc.)
  • Review I-9 and E-Verify software for compliance with the law;
  • Manage migration of Forms I-9 from paper process to electronic process;
  • Assist in maintaining electronic I-9 files;
  • Conduct an internal audit of Forms I-9;
  • Assist in remediating Forms I-9;
  • Provide customized Form I-9 remediation training;
  • Assist in purging of Form I-9;
  • Assist in guidance with reverification and rehiring protocols;
  • Assist with pre-merger and/or pre-acquisition Form I-9 compliance;
  • Draft a corporate I-9 compliance policy;
  • Respond to an ICE I-9 Audit;
  • Negotiate with ICE during civil I-9 audits for settlement;
  • Represent employer in appeals process if ICE levies a fine;
  • Counsel employers on avoiding discriminatory conduct;
  • Respond to government investigations and charges of discriminatory conduct;
  • Respond to government queries on identity theft and other related crimes;
  • Respond to government subpoenas for immigration-related data;
  • Respond to government other immigration-related raids;

E-Verify Compliance (Specifically)

For some employers, the federal E-Verify System is the next step after the Form I-9 is completed.  Some employers have enrolled in E-Verify voluntarily.  Others have enrolled due to a local, state, or federal law that mandates their enrollment.  Some employers are considering enrolling voluntarily.  Regardless of where your organization stands, here are some ways in which employers have sought counselor advice:

  • Draft an E-Verify Compliance Policy;
  • Advise on compliance with federal acquisition regulations (FAR);
  • Review the verification processes of contractors and sub-contractors;
  • Help distinguish contractors from employees;
  • Interpret state or local E-Verify laws;
  • Review the impact of E-Verify Memorandum of Understanding (MOU);
  • Counsel on participation in the IMAGE program;
  • Respond to government-issued no-match letters;
  • Assist with record-keeping compliance;
  • Clarify rules on photo-matching technology;
  • Assist with tentative and final nonconfirmation (TNC/FNC) resolution protocols;
  • Counsel employers on avoiding discriminatory conduct;
  • Respond to government queries on non-compliant use of E-Verify;
  • Respond to government investigations and charges of discriminatory conduct;
  • Respond to government queries on identity theft and other related crimes; and,
  • Respond to government subpoenas for immigration-related data.

Although compliance in other practice areas are varied, I-9 and E-Verify compliance remains constant; it’s perennially complex.  Stay updated on compliance in this field by subscribing to the LawLogix I-9 and E-Verify Blog.