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How Does a Divided Congress in 2019 Impact I-9 and E-Verify Compliance?

During the past few weeks, it’s been hard to escape midterm election mania here in the US. Whether you prefer blue, red (or even purple), you’ve undoubtedly been inundated with news analyses and poll predictions regarding hotly contested races throughout the country. The arguments on all sides have often been loud and impassioned, covering a wide range of issues such as health care, gun rights, gender/race equality, and of course, immigration.

Immigration has been a lightning rod of controversy throughout President Trump’s first two years in office, due in no small part to the Whitehouse’s hard stance on a variety of policy decisions affecting refugees, asylees, DACA recipients, and even employment-based entrants (H-1Bs, L-1s, etc.) to name just a few.

And now that the results are in, it’s time to take a step back and reflect upon what a Democrat-controlled House and a Republican-controlled Senate will actually mean for the state of immigration and, for purposes of this blog, immigration enforcement in 2019.

Immigration and I-9s/E-Verify

First, let’s address a frequently asked question: what does immigration (and all of the controversy surrounding it) have to do with I-9 and E-Verify compliance? Answer: Plenty. While the I-9 may seem like just “another onboarding form” on par with your W-4 and direct deposit form, the whole point behind completing an I-9 is to ensure that you are hiring a legal workforce.

Originally conceived in 1986, the I-9 is an important (and often overlooked) element of immigration compliance. While President Trump may talk about tough border enforcement (through the infamous “wall”), many in his administration feel that the real focus should be on US employers, who are often accused of being the “magnet” that draws individuals to enter (or remain) in the country without authorization.

How will our new “divided” Congress affect future I-9 (and E-Verify) compliance initiatives and trends? Read-on for this author’s predictions…

Form I-9 Audits

Trend:  Continuing and expanding

2018 was the year that President Trump awoke the sleeping giant of “employer sanctions” through several rounds of Form I-9 audits, conducted by Immigration and Customs Enforcement (ICE). To a large degree, these audits arrived in highly publicized waves – a few thousand here, a few thousand there, with the end result being an over 300% increase from prior year audits. In explaining the justification for the audits, ICE representatives often focused on the notion of “creating a culture of compliance” while stressing that all organizations, regardless of size, industry, or workforce must follow the I-9 rules.

Looking towards 2019, I think we have every reason to expect these I-9 audits to continue and grow, primarily because the Democratic-controlled House will be too busy investigating Mr. Trump’s other immigration initiatives which are much more controversial in nature. Many are already predicting a series of House-led investigations on a wide variety of presidential decisions including the administration’s zero tolerance policy for illegal border crossing (leading to the separation of 2,500 children from their families at the border), his efforts to sharply decrease refugee and asylum admissions, and the sending of active-duty military troops to the southwest border to stop a caravan of Central American migrants.

Meanwhile, ICE continues to ramp up its worksite enforcement operations with an eye towards increasing the number of audits by another 200% to 300% through an expansion of its audit mega-center known as the Employment Compliance Inspection Center (or ECIC for short). The agency has also hinted at other process/technology changes as well, including electronically scanning the documents to help flag suspicious activity and serving Notices of Inspections electronically or by certified mail, instead of in person.

E-Verify

Trend:  Continuing and expanding

Often touted as the verification system of the future, E-Verify continued to make inroads with employers across the US – with enrollment now exceeding 800,000 employers at roughly 2.7 million worksites. This expansion has continued despite the “mostly voluntary” nature of the E-Verify program, due in part to the USCIS’s significant outreach programs and employers’ general concern over compliance and document fraud.

At the same time, the agency has been moving full steam ahead with a variety of system enhancements which are designed to make the E-Verify process easier to complete while improving the overall accuracy of the verification check. In speaking with USCIS representatives, the justification for these developments is clear – they are fully expecting (and preparing for) an eventual “mandatory E-Verify” requirement for all US employers, regardless of size.

But is that a likely possibility with our soon-to-be-installed Congress? Hard to say for sure. Several so-called mandatory E-Verify bills have been introduced over the past few years, but they typically die a quiet death or become stymied in much larger (and more complicated) discussions on comprehensive immigration reform. In the wake of this bottleneck, I think we can expect to see additional state and local-level E-Verify legislation, further fragmenting (and complicating) employers’ obligations for verifying their new hire employees.

And employers using the E-Verify system should definitely expect additional “enhancements” and changes to the system – if for no other reason than to appease E-Verify critics who argue the system is not reliable. We recently blogged about the latest such enhancement involving driver’s license validation here.

I-9/E-Verify Process and Procedure

Trend:  More complexity on the horizon

One of the most frequent complaints I hear about I-9/E-Verify compliance relates to the seemingly endless and antiquated rules that employers have to follow, all under the penalty of significant fines. For a society that thrives on efficiency and innovation, the I-9 process can sometimes feel like a giant step backwards in time. There are very strict timelines for completing the various sections, mathematical rules for figuring out retention, and zero flexibility for employers who routinely hire employees on a truly remote basis. And let’s not even get started on some of the logic-defying processes for recording information about foreign national employees (“you want me to write an expired date over here even though the form states no documents can be expired?”)

Alas, the Form I-9 rules are unlikely to improve in the near future, despite the very real desire (within the USCIS itself) to make some much-needed changes. Many of the thorniest (and outmoded) I-9 rules stem directly from the statute itself, preventing any significant change unless Congress were to enact a new law. And as mentioned above, immigration legislation has been few and far between over the past several decades, so absent some pressing issue (such as DACA), or an unforeseen compromise position, we’re likely going to be stuck with the same Form I-9 process for a while.

But, that won’t stop the process from getting even trickier, especially as it relates to foreign national employees impacted by Mr. Trump’s immigration initiatives. Just this past year, many employers scrambled to figure out how to deal with employees in Temporary Protected Status (TPS) or those with DACA-based work permits based on termination announcements from the Whitehouse. Also looming for many employers is the proposed termination of employment authorization for certain H-4 spouses – as promised in a recent notice of proposed rulemaking.

Conclusion

As employers begin to prepare for 2019, human resource and compliance managers should pay special attention to their ever-evolving Form I-9 and E-Verify compliance obligations, especially in light of the ongoing immigration debate that will surely persist (and heat up) in our divided Congressional branch of government.

Experts recommend reviewing current policies and practices with counsel; conducting a self-audit to fix mistakes and omissions; and adopting smart electronic I-9 processes which ensure compliance with ever-changing (and often unpredictable) government rules.

Have a comment in regards to this blog or I-9 compliance in general? Please feel free to contact us for more information!


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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