All aboard the I-9 Central: Is this the last stop for compliance?
During the past week, I’ve been on the road (again), speaking at various immigration and HR-related conferences about I-9 compliance and technology. It’s a familiar pitch for me (smart technology = better compliance), and I generally see most of the audience nodding their heads in agreement (or nodding off if I’m speaking too soon after lunch). Occasionally though, someone will come up after the presentation and ask a very simple and logical question – why can’t they (the “government”) just make this form easier and less confusing? There are many ways to answer this question, but the reality is that redesigning the Form I-9 into a comprehensible process is no small task. You know you’re in trouble when even the I-9 Handbook for Employers (M-274) has been continually growing in size as the United States Citizenship and Immigration Services (USCIS) tries to account for all possible hiring scenarios. Hired for 3 days or less? Different process. Under age 18 without an identity document? Very different process. It’s no wonder that HR and hiring managers have such a difficult time figuring out the rules.
Last week, however, the USCIS took another step in the right direction by launching I-9 Central, a new online resource center dedicated to providing both employers and employees a “simple one-click access to resources, tips and guidance to properly complete [the] Form I-9 and better understand the Form I-9 process.” More specifically, I-9 Central features step-by-step instructions for completing the form, information on acceptable documents for establishing identity and employment authorization, sections about employer and employee rights and responsibilities, common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ frequently asked questions.
Does I-9 Central succeed in its mission of guiding us through the I-9 labyrinth? Read below for this author’s review of this latest compliance resource.
When I first learned of “I-9 central” earlier this year, I was imagining a Google-esque web site where visitors could simply type-in their I-9 question and receive a near instantaneous and helpful response. I’ll save you the suspense – we’re not quite there yet. I-9 Central utilizes the same USCIS green-and-white website to deliver a focused and detailed presentation of the I-9 process from A to Z. Featuring plenty of flowcharts, graphics and illustrations, I-9 Central succeeds in educating the visitor on the overall I-9 process and the specifics of how the form should be completed. I particularly like the hyperlinked words throughout the site, which enable the viewer to read the official definition of critical and frequently misunderstood terms such as employee, employer, and hire. This wiki-style method of instruction is effective, allowing the user to drill-down into a subject for a more thorough understanding. For more complex subjects, clicking on a word will open a new window (or tab) in your browser. On any particular page, you can also see the I-9 Central “menu tree” which provides an alternative method for navigating through the site. Overall, I think the interface is good, although I think the search functionality could be improved.
I-9 Central provides several new instructions and guides which should help employers correctly complete the I-9 on paper (note – several of these are already built-in to well-designed electronic I-9 systems). The Citizenship Status/Document Matrix shows which documents are issued to which categories of individuals (US citizens, noncitizen nationals, lawful permanent residents, or aliens authorized to work). Why is this useful? Well, under the USCIS guidelines, employers must reject a document which is inconsistent with the employee’s status in section 1 (e.g., permanent resident presents a U.S. Passport). I-9 Central also features a new chart which may assist employers in examining documents. A word of caution here: employers should always be careful in applying their document review standard uniformly throughout the organization and be mindful that rejecting valid documents (in an unreasonable fashion) could lead to potential discrimination claims.
In addition, I-9 Central includes new sections on correcting the Form I-9, avoiding common errors, and ensuring that you are using the right version of the Form. I also like the “About the Form” page which provides links to receive I-9 training, a quick comparison of I-9 and E-Verify, and a handy chart of federal statutes and regulations which form the basis of the I-9 and E-Verify process.
Facilitating the I-9 Process
Although I generally like the interface and the new information provided, I must admit I have several concerns regarding the overall “big picture” goals of this new compliance resource. First, I was expecting that I-9 Central would become our new one-stop shop for all things I-9 and E-Verify related. While the new site is certainly comprehensive, it’s clearly designed to be yet another “supplement” for the busy HR or hiring manager who is tasked with overseeing or performing I-9 compliance. So now when a difficult problem arises, we have to check (1) M-274, (2) I-9 Central, (3) E-Verify guides and bulletins, and (4) our trusted attorney (although not necessarily in that order).
What’s more troubling to me, however, is that with so many resources, there are bound to be contradictions which will further confuse this area of compliance. Here are few examples already spotted:
- The latest M-274 provides an illustration on page 14 of how employers should complete section 2 of the Form I-9 for F-1 students in curricular practical training (which requires recording 3 documents – foreign passport, I-94, and I-20). The illustration shows all three documents being entered under List A, whereas I-9 Central instructs the user to “write the SEVIS number and the program expiration date from Form I-20 in the margin of Form I-9 near Section 2.”
- I-9 Central indicates that employees should not enter a PO Box in Section 1, whereas the M-274 is completely silent on this issue. I’ve also attended I-9 training seminars, where Immigration and Customs Enforcement (ICE) representatives have stated that PO boxes are okay on a temporary basis as long as the address is updated when available.
- I-9 Central warns that employers may only correct errors made in Section 2 or Section 3 of Form I-9. In practice, however, ICE has stated that an employer may also correct section 1 under certain circumstances if the employee provides authorization for the correction in advance.
By themselves, these discrepancies seem rather minor (perhaps even frivolous), but the stakes are high when employers can be fined thousands (or even millions) of dollars for technical and procedural violations on the I-9 form. Will ICE respect the discrepancies listed above and provide employers a break for at least trying to do the right thing? And even if ICE gives you the benefit of the doubt, what is the real cost for the employer in terms of I-9 research, training, and updating of policies and manuals in preparation for a potential audit?
Is I-9 Central the last stop for complying with employment eligibility verification? Probably not, but it is another useful resource for getting your arms around this confusing and frequently changing area of law. As we’ve said before though, I-9 and E-Verify compliance should never be viewed in a vacuum: read all of the various resources, consult with counsel for policy and training, and start using a smart and compliant electronic I-9/E-Verify solution to finally get your I-9 compliance program on track.