Questions and Answers on Preparing for an I-9 Audit

Last Thursday, November 7, LawLogix conducted a webinar “Key Tactics and Strategies in Preparing for an I-9 Audit.” Our guest speakers included:

  • Amy Peck, Partner at Jackson Lewis LLP in Omaha, Nebraska
  • Elizabeth Shelly, Global Human Resource, T. Rowe Price

Now that the government has resumed operations after the shutdown, what should employers expect from an I-9 compliance standpoint?  Is it business as usual?  Our attendees agreed that the most pressing issue that kept them up at night was the inevitable I-9 audit by the government.   Today’s article summarizes some of the most popular questions we couldn’t address during the webinar due to the time constraints:

EMERGING TECHNOLOGIES

Q: Can I use technology to verify the documents, such as Skype or Facetime, to verify a new hire’s documents in Section 2?

A: The regulations require employers to physical inspect (see and touch) the documents presented for Section 2 during the verification process.  Currently, teleconferencing technology is not permitted during the Section 2 verification process.  (See page 5 of the M-274, Handbook for Employers, Rev 4/30/2013.)

Q: Can I use mobile technology (smart phone or tablet) to scan/photograph support documentation for Section 2 (like List A or B/C documents) for a upload, at a later time, onto my organization’s online files?

A: Considering that Form I-9 identity and work authorization documents contain a ton of personally identifiable information (PII), loading this information onto an employee’s mobile device will raise a host of privacy issues.  Consult with your organization’s chief privacy officer to implement a best practice policy that protects employee PII and reduces liabilities from potential breaches.

SECTION 1 ITEMS

Q: Will you please clarify the email and phone options in Section 1?

A: The email and phone fields on Section 1 of the Form I-9 are optional.  If your organization is enrolled in E-Verify, and the employee chooses to complete the email field, then the employer must input this information into the E-Verify system.  See page 1 of the instructions to the Form I-9.

Q: Can you clarify when we can complete Section 1 and Section 2 of the Form I-9?

A: Section 1 can be completed anytime after the employee accepts the job offer, up until the end of the first day of work for pay.  Section 2 can be completed anytime after the employee accepts the job offer up until the third business day the employee starts work for pay.  To learn more, visit USCIS’ I-9 Central for greater details.

SECTION 2 ISSUES ON THE FORM I-9

Q: Can anybody act as an employer representative in Section 2 to “certify” that section?

A: Yes.  However, the employer is ultimately responsible for the actions of the whomever “certified” Section 2.

Q: Where can I find the “issuing authority” on the documents presented during Section 2 verification?

A: The document will typically list the agency issuing that document. For example, a U.S. passport may be issued by the “U.S. Department of State” or by the local regional passport agency; a state driver’s license may be issued by the state DMV; a social security card may be issued by different agencies depending on the year it was issued. Carefully inspect the document for the issuing authority.

Q: Can we use the “Who is Issued This Document?” chart on the USCIS website to determine if a document pertains to an employee?

A: Yes.  However, keep in mind that the chart was last update d on June 29, 2011 (last accessed online on November 11, 2013).

Q: How should our organization manage home-based employees or remote employees?

A: Although there is no right or wrong way when it comes to the Form I-9, there are best practices.  We devoted an entire article here about it.

Q: How can I manage soon to be expired documents that need reverification?

A: The best way is to implement a system that tracks expiration dates and sends the person in charge of managing I-9 issues a tickler well in advanced.  Check out our Guardian I-9 and E-Verify software to see how we can help.

RETENTION ISSUES

Q: Can we keep our I-9 Forms with the employee’s personnel file?

A: That depends on how your state categorizes what belongs in a personnel file.  USCIS does not express a preference for where employers store their Forms I-9 so long as the forms are easily accessible during a government I-9 audit and protect employee PII.

DEVELOPING BEST PRACTICES

Q: Our other business process (credentialing for healthcare providers, payroll, etc.) requires a copy of the social security card.  Can we combine that process with the I-9 process?

A: Many employers have developed a best practice to segregate the Form I-9 process from all other functions because of the compliance nature of the Form I-9.

Q: We have multiple locations where some offices are enrolled in E-Verify and some are not.  Would it be a good practice to standardize all of our required fields for the locations?

A: Standardizing the Form I-9 process across all satellite offices to be consistent with headquarters may have its advantages.  Be sure to consult with your I-9 expert, either internally, or with an experienced immigration attorney, to ensure that your standardized process is consistent with the I-9 and E-Verify regulations.

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Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions regarding properly completing I-9 Forms, planning I-9 audits as it relates to I-9 compliance, or questions about E-Verify in general or in your state, please contact an experienced immigration or employment attorney to obtain advice which is tailored to your unique situation.