2021 in Review: Top Ten I-9 and E-Verify Compliance Insights
Last week, the American Immigration Lawyers Association held its annual Employer Compliance and Worksite Enforcement Conference, an all-day deep dive into the latest Form I-9, E-Verify, and corporate compliance issues facing employers today.
And not surprisingly, there was a LOT to talk about it. As many in HR know all too well, we have seen an unprecedented number of new (and interesting) I-9 and E-Verify policies from the government during the past few years, impacting how employers complete and otherwise manage their employment eligibility verification programs.
But you’re in luck, because I’ve assembled the ultimate “Top Ten” list of compliance tidbits from the conference – focusing, in particular, on those items that are most pressing for HR and employers today. As always, I highly recommend that you review these items (preferably with counsel) to mitigate your compliance exposure and ensure smooth I-9 and E-Verify operations.
Top Ten I-9 and E-Verify Compliance Insights from 2021
(1) I-9 compliance is complex and constantly evolving.
AILA President Allen Orr reminded us that I-9 compliance can be exceedingly complex, and the stakes are high. In many instances, employers only get one shot to do it right, and if they don’t, they are forever liable. And this burden disproportionally affects small and medium size employers who, for example, may not have the resources to fully understand the various immigration-related documents that may be presented.
And those document combinations are constantly changing, whether due to COVID relaxations, lawsuits over processing delays, or just internal government changes. According to attorney Kimberley Robidoux, there are actually 26 (and counting) combinations of acceptable documents that don’t appear on the official Lists of Acceptable Documents. I blogged about one of those earlier in the year – the expired LPR card with an I-797 extension notice.
Speaking of documents, several panels discussed the mysterious List C #7 document, which is the “catch-all” category designed for a wide variety of documents issued by DHS that show work authorization. While the panelists have been pushing the USCIS to specifically list all of the various permissible C#7 documents, the government has (thus far) declined to do so.
(2) Virtual Verification (remote I-9 inspection) isn’t perfect or for everyone
Dawn Lurie from Seyfarth Shaw provided insight into the government’s relaxed ‘virtual verification’ policy that was implemented for employers in March 2020 as COVID-19 began to take hold here in the US. While the program has evolved throughout the course of the pandemic, Dawn explained that it’s still essentially a two-step process, requiring the employer to virtually inspect an employee’s identity and work authorization documents (through video, email, etc.) followed by an in-person inspection at a later time. See my blog here for a detailed description.
For that reason, many large employers have decided that virtual verification is simply too much work and have opted instead to use an authorized representative for their remote hires. However, employers need to be careful when using an authorized rep because they are ultimately on the hook for any violations. Check out my article from last year for some best practices to consider when using a remote agent.
But for employers who want to use virtual verification, the qualification rules got a little easier, courtesy of a policy change in April 2021. Specifically, new hires who work exclusively in a remote setting due to COVID-19-related precautions are temporarily exempt from the I-9 physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
Previously, the government had stated that you had to be “100% remote” to use the policy – a restriction which prevented a lot of organizations from taking advantage. Regardless, Dawn recommends employers using virtual verification follow these 3 best practices: (1) memorialize your policies, (2) make sure you are being reasonable, (3) track your employees to ensure appropriate follow-up.
(3) Employers should focus on both compliance and employee experience
Former practicing attorney Alex Madrak (now with Amazon) reminded us all how stressful an onboarding process can be for new hires, who are often required to present a lot of information (and documents) within a short period of time. While compliance must always be top of mind, Alex stressed the importance of improving the employee onboarding experience (whether that’s through an authorized representative path or virtual verification) so that the hiring process can be as seamless as possible.
Separately, Alex also discussed the use of FAQs for remote agents and/or I-9 help desks (for large organizations) so that the inevitable questions from employees can be quickly and confidently resolved.
Last but not least, employers should carefully document their policies and procedures (virtual or otherwise) as noted by attorney Nici Kersey of Kersey Immigration Compliance. Nici explained how she instructs all of her clients to keep on file the various COVID-19 announcements (and policies) from DHS to protect them in the event an audit later questions a particular practice that was in fact permitted by the agencies at the time.
(4) The government wants to hear from you about a permanent virtual verification option
Katie Minervino from Pierce Atwood LLP said that one good thing that came out of the pandemic is that the government is now considering a so-called “permanent option” for remote I-9 inspection, due to in large part to the changing employment landscape where remote employment is now the norm in many industries and occupations.
Earlier this fall, DHS posted a request for public input on its website, seeking “alternative options” for physical document examination that offer an equivalent or higher level of security for I-9 purposes. As Katie explained, this is a rare opportunity for employers to “make the argument” as to why virtual remote I-9 inspection might be a good idea on a permanent basis.
Dawn Lurie reiterated this point, noting that employers have until December 27, 2021 to submit a comment. For more information, check out my blog on the topic here.
(5) When you receive an I-9 notice of inspection, you’ll likely have no clue what triggered it
Moving onto audits, Eileen Momblanco at Laner Muchin walked us through the anatomy of a Form I-9 inspection from Immigration and Customs Enforcement (ICE), including the various notices and demands that employers may receive. And while ICE is happy to talk to you about the Notice of Inspection, Eileen noted they will not typically reveal what prompted an employer investigation (no matter how nicely you ask).
As a side note, ICE typically notes that their agency focuses on employers in critical infrastructure industries and cases involving employers who commit “egregious” violations
of criminal statutes and engage in worker exploitation. But based on the audits actually received, it can sometimes feel quite random. You can read about the agency’s latest worksite enforcement directive here.
Regardless of how it started, employers need to be prepared for the long slog ahead. Jeff Joseph from Berry Appleman & Leiden explained that while every ICE district is different, many are seeing significant delays in responding to worksite related cases – sometimes due to COVID, and other times because of competing ICE enforcement demands. When it comes right down to it, I-9 compliance may not be as sexy as we all think.
And when you do hear back from ICE, it may eventually end in the form of a Notice of Intent to Fine, where the agency assesses penalties for so-called substantive violations. And when reviewing that document (with counsel), employer should make sure that the fines are within the allowable range. Attorney Rick Gump discussed how ICE will often use their own unique math to calculate penalties, and that invariably means higher fines for employers.
One particular problematic trend is for ICE to add-up both paperwork and knowing hire/continuing to employ violations in one calculation, resulting in a much higher percentage of violation for fine purposes.
You can read here about the latest Form I-9 penalty adjustments (for inflation) that went into effect in October 2021.
(6) IER spends roughly 80% of their time on I-9 enforcement of the anti-discrimination law
Speaking of audits, employers also need to remember that ICE is not the only agency that enforces the I-9 requirement. The Department of Justice, through its Immigrant and Employee Rights section (IER) enforces the anti-discrimination provisions of the law and according to Deputy Special Counsel, Alberto Ruisanchez, the agency spends a fair amount of its time responding to complaints and initiating investigations when employees are treated differently because of their protected class.
IER also has an “information sharing” agreement with E-Verify whereby the latter can refer cases to IER if they suspect misuse, abuse, or fraudulent use of the E-Verify system. Attorney Eileen Scofield from Alston & Bird recounted a cautionary tale of an employee with a rogue hiring manager who improperly required lawful permanent residents (100% of the time) to produce green cards for E-Verify purposes – an indisputable fact that was revealed through the E-Verify data mining process and ultimately shared with IER (resulting in a 7-month investigation).
On the less scary side, IER also engages in lot of employer education and has a fantastic hotline that can be used by either employers or employees who have questions about the I-9 process or specific documents. Alberto also confirmed that employers can call-in anonymously for assistance.
The Worker Hotline: 1-800-255-7688
Employer Hotline: 1-800-255-8155
(7) When formulating your hiring policies and recruitment practices, don’t forget about state law!
While immigration-related provisions are typically governed by federal law and regulatory procedure, employers also have to consider new and emerging state laws when conducting recruitment. Amy Peck from Jackson Lewis spoke about the increasing number of state laws that prohibit employers from making employment decisions based on an individual’s immigration status or their length of status.
For example, Illinois Public Act 102-0233 ensures that anyone with federal work authorization,
is protected from employment discrimination, as compared with federal law where “citizenship discrimination” only protects U.S. citizens, U.S. nationals, asylees, refugees, and recent lawful permanent residents. The practical effect of this law is that many in HR will now need to carefully consider the questions they ask potential job applicants, especially with regards to immigration status and future sponsorship.
And it’s just not Illinois either. I recently blogged about a very similar law in Washington state that was being used in a lawsuit against Zoom communications by a DACA employee.
(8) E-Verify may be free, but it’s also a potential landmine for employers
Kevin Lashus of Fisher Broyles describes E-Verify as the most expensive free program that an employer can join, especially when you consider the amount of ancillary work and the increased exposure to prying government eyes. Kevin has long talked about the high transactional costs of E-Verify which must be factored into any voluntary decision to use the program.
Bruce Buchanan of Sebelist Buchanan Law PLLC explained that there are a wide variety of state laws and requirements relating to E-Verify, especially concentrated in the southeast. When E-Verify is not mandated, he will typically explain the pros and cons of E-Verify to his employer clients, making sure they fully understand the obligations and the increased government oversight (which by itself is often a deal-killer). Bruce noted that employers with frequent turnover and those without HR departments should definitely think twice.
Helen Konrad of McCandish Holton walked us through the various E-Verify rules and requirements that typically trip-up employers. For example, you can’t prescreen employees, skip the I-9 in favor of E-Verify only, selectively use the program, or use E-Verify for reverification purposes. There are also a myriad of other rules relating to document acceptance, retention, and tentative nonconfirmation (TNC) processing. As with many things in the compliance world, Helen emphasized that training is key.
(9) An electronic I-9 system is only as good as its last release
All of the panels discussed electronic I-9 systems and emerging concerns regarding compliance or the lack thereof. Amy Peck pointed out that many HR systems are designed primarily for onboarding and recruiting functions (and not I-9 compliance), which often leads to a complete or partial disregard for the unique statutory and regulatory requirements. Marketa Lindt from Sidley Austin concurred, mentioning that while employers are often good at vetting systems for features/functionality, many in HR are not spending enough time performing a true compliance review.
And even if the system appears to be compliant now, Dawn Lurie noted that employers have an ongoing obligation to ensure that the system remains compliant in the future – especially considering all of the nuanced and frequently changing I-9 and E-Verify rules that are announced with very little notice from the government.
Speaking of the government, we also heard how IER often runs into situations where an employer’s electronic I-9 system (or their “configuration” of the system) leads them down a dangerous path of treating employees differently based on their protected class. We recently blogged about these dangers from 2 recent IER settlements: one with Ascension Health and the other with clothing retailer Gap.
(10) The next generation of E-Verify may put the employee in the driver’s seat
Last but not least, Dawn Lurie gave us a brief glimpse into what the future may hold for E-Verify as the agency considers its “next generation” system. In particular, USCIS has been looking at what can they do within the confines of the existing law and regulations, with the ultimate goal of minimizing verification and documentation burdens on employers.
This may include combining certain elements of the Form I-9 with the E-Verify process, although the employer would still be required to conduct an in-person document inspection. Dawn mentioned that the agency is also considering shifting the TNC responsibility from employers to employees – a task they would likely have to complete using the myE-Verify portal. As envisioned, the employee may then be required to present some form of digital token which can be validated to close out the case.
Stay tuned for more updates on that development. In the meantime, check out a blog I wrote earlier this year discussing the myE-Verify portal, which thus far has very limited use.
As Form I-9 and E-Verify rules continue to evolve at a rapid pace, employers must recognize that they are being held to much higher standard of compliance than every before. If you’re new to the wonderful world of I-9 compliance, we highly recommend that you carefully review your I-9 compliance program (including the use of new electronic tools) to ensure you’re staying way ahead of the curve.
Have questions on today’s blog? Please drop me a line here. You can also contact us to learn more about our electronic I-9 and E-Verify platform, Guardian, which was designed by attorneys to compliantly help organizations streamline and standardize their hiring practices.