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I-9 and E-Verify Practice Tips from the Experts for 2012

Here at the LawLogix I-9 and E-Verify Blog, we’ve had the honor of publishing articles written by some of the nation’s top immigration I-9 and E-Verify experts. As a fellow immigration attorney, serving as this Blog’s Editor has reaffirmed to me how complex this area of law has become over the years and the amazing base of knowledge our experts have developed in the aggregate. As part of our holiday gift to our readers, our experts, once again, have graciously provided us with their practice tips, which we’ve compiled in our I-9 and E-Verify Practice Tips from the Experts for 2012.

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Josie Gonzalez, Managing Partner, Gonzalez & Harris, P.C., Pasadena, CA

Don’t cheat (like backdating a Form I-9) and remember — there are no secrets in the workplace. There are a million ways that ICE can catch you. Just assume they are omniscient and know everything. And, threatened with prison by ICE, your foreign national or supervisor will turn on you in an instant.

Kevin Lashus, Managing Partner, Jackson Lewis LLP, Austin, TX

“. . . ICE, IRS, and DOL were sleeping snuggly in their beds with visions of compliance audits dancing in their heads . . . be on the lookout for information sharing between federal enforcement agencies—one agent’s wage & hour audit is likely another’s I-9 inspection . . .” Being prepared to honestly evaluate compliance comprehensively is the only way to minimize exposure. You can’t minimize risk.

Ilana J. Drummond, Partner, Jackson & Hertogs LLP, San Francisco, CA

Make it an annual check- in with your folks who do E-Verify to ensure that they have complied with their annual update training.
Review your on-boarding policies and fine tune them for next year with regards to I-9 procedures and ensure that your staff is all trained and ready for the New Year. You want to make sure everyone is consistent.
Review your reverification procedures to make sure that I-9s are being reverified timely and consistently.
Audit your I-9s that were completed in the past year and purge I-9s that are beyond the retention period.

Gary Endelman, Senior Counsel, Foster Quan, LLP, Houston, TX

Build a culture of compliance. Educate your I-9 and E-Verify problem solvers. Enter the New Year with a renewed commitment to worksite enforcement!

Charles H. Kuck, Managing Partner, Kuck Immigration Partners LLC, Atlanta, GA

Do NOT believe what you read on the internet or hear at online HR seminars, auditing I-9s is a complex, detail oriented job. Self-auditing leads to HIGHER fines by ICE when mistakes are made, NOT lower fines. Don’t self-audit!

Anthony Weigel, Principal, Weigel Law Office, LLC, Grain Valley, MO

With hope growing for Comprehensive Immigration Reform (CIR) in 2013, expect change. Past CIR efforts included provisions to mandate that all employers begin utilizing E-Verify and re-verify all existing employees with that system.

Sarah E. Buffett, Member, Moore & Van Allen, Charlotte, NC

If creating an electronic I-9 system isn’t your area of specialty, this isn’t the place to branch out. Purchase a professional I-9 electronic completion and storage solution. (Abercrombie & Fitch learned they should have stuck to jeans and T-shirts after receiving a seven-figure fine for their proprietary electronic I-9 program.)

Paul L. Zulkie, Managing Principal, Zulkie Partners LLC, Chicago, IL

When conducting self-audits for quality control purposes, bring in a fresh pair of eyes from outside the company. Those employees responsible for I-9 preparation will inevitably miss many of their own mistakes. Those “silly” clerical errors can add up to enormous civil penalties in the event of an ICE audit.

Christine D. Mehfoud, Senior Counsel, McGuireWoods LLP, Richmond, VA

Train, train and train again. Annual Form I-9 training, in addition to refresher training as the rules change, is essential to a healthy immigration compliance program. I-9 compliance is similar to a foreign language – if you don’t use it, you lose it.
Don’t attempt an I-9 audit alone. There are many traps for the weary and you can easily end up doing more harm than good. In the eyes of the government, the manner by which the I-9 is completed and audited is just as important as the information on the form itself.
Take the time to review and audit I-9s prior to producing them in response to a Notice of Inspection.
If you don’t need to keep an I-9 form, don’t! Ensure that you have a written document retention policy for I-9s and that it is being followed. If the retention period has passed, there is no reason to maintain the I-9.

Nicole Kersey, Managing Director, Kersey Immigration Compliance, LLC, Crozet, VA

Don’t be “e-terrified,” but be cautious. Electronic I-9s and E-Verify can improve compliance, but a flawed electronic system can create greater risk than flawed paper I-9s. Understand that the process of “going electronic” may be a time-consuming task. If you do it right, it will be worth the time and effort.

Sharon R. Mehlman, Partner, Larrabee | Mehlman | Albi | Coker LLP, San Diego, CA

Don’t be afraid to ask ICE for what your client wants or needs (whether extension, settlement, or otherwise). The worst they can say is NO but your client will appreciate that you gave it your best effort. And sometimes, ICE says YES!

Kimberley Best Robidoux, Senior Associate, Larrabee | Mehlman | Albi | Coker LLP, San Diego, CA

Don’t ruin your Image: Invest in creating a sound I-9 policy with clear procedures.
Manage the I-9 process effectively by seeking assistance from outside counsel for internal I-9 audits. The government is not always your friend.
E-Verify only after you do your homework and know the rules, risks and rewards.

L. Batya Schwartz Ehrens, Attorney at Law, Immigration Attorney, New York, NY

Hurricane Sandy reminded us that although natural disasters are often predictable, disaster preparedness plans are essential for survival. In the changing climate of worksite compliance, before the storm hits, employers must assess, prepare, and plan in order to survive. This is the only way to minimize the human capital and economic costs of disaster recovery relief. If not now, when?

Amy Peck, Of Counsel, Jackson Lewis LLP, Omaha, NE

Don’t let the Grinch steal your 2013 budget! You will need it to plan for training and implementation of the new two page I-9 form.  The new I-9 will be trickier than stuffing a Christmas tree up the Chimney! Don’t be caught asleep.

Jared Leung, Of Counsel, Fennemore Craig, P.C., Phoenix, AZ

Don’t get caught with your pants down:  Best time to audit your I-9s is before you receive ICE’s Notice of Inspection.  You can do so much more to beef up the status of your I-9s if you have more than three days.
If a new hire makes a full confession that he or she does not have work authorization, that conversation may be recorded and become “Exhibit A” of ICE’s complaint against you.  Be warned!

Valentine A. Brown, Partner, Duane Morris LLP, Philadelphia, PA

Appoint an In-house “Guru” – someone who’s been expertly trained on I-9s and E-verify who can review forms and answer questions.

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