I-9 Questions from Our Readers
This year, we’ve received many questions from our readers about I-9 compliance as a result of more than 200+ articles and multiple I-9 webinars we’ve given. Some questions seek very procedural responses while others are rhetorical. We’re taking a pause today from the hubbub of news and updates to go over some of the questions. Procedural and legal questions we’ll reserve for a future article where our attorney partners can respond with their expertise. [Note the questions below are taken almost verbatim from our readership.]
1. How close are we to the release of the new I-9 Form?
The second comment period ends on October 15, 2012. If the comments are anything like the first round of comments, which tallied over 6,200, then USCIS will probably be spending a few months reviewing the comments before issuing the final form. Given how much public interest there has been in the evolution of the form revisions, it would certainly be a welcomed relief for many employers if USCIS provided the public with an appropriate grace period in order to adopt the new changes into existing business practices.
Check back on the LawLogix I-9 and E-Verify blog. We’ll always bring you the latest details as they evolve.
2. Regarding electronic I-9 solutions/options, which is the considered the best amongst employers?
From our vantage point, LawLogix Guardian I-9 and E-Verify System is the best. Many vendors design software for the purpose of moving data from one repository to another to save time or lower costs. If electronic I-9 software were any other software, these objectives alone make a lot of sense.
However, managing I-9s has long ceased to be another routine HR function. The day DHS actively adopted the strategy to randomly audit employers, to regularly issue civil fines, and to criminalize certain egregious non-compliant behavior, was the day I-9s become a compliance function for all employers. Organizations who have adopted this new approach; that I-9s are a compliance function, therefore actively seek software that performs like compliance software (in addition to saving time and lowering costs).
Organizations currently in the process of vetting software can download a list of due diligence questions to ask software vendors.
3. When will the government provide an online I-9 Form?
This would be an unlikely for two primary reasons. First, the purpose of the data collected on the I-9 Form is to verify the work authorization of an employee. Since the government would have no way of knowing when an organization is hiring, the government has no stake in creating an online I-9 Form for employers. The onus is on the employer to complete this function of verifying employee work authorization.
Second, the government (sort of) already has an online I-9 Form. The E-Verify system takes all of the data entered into the system from the I-9 Form and checks that data against various federal databases in order determine work eligibility. While the accuracy rate is still debated by various groups (and outside the scope of this answer), the E-Verify system is, in essence, the government’s online I-9 Form. Moreover, when a tentative non-confirmation arises out of any case, the onus is still on the employer to work with their employees to resolve the matter.
4. Why is the Form I-9 so difficult to complete and not user friendly?
To be fair to the government, designing a form that satisfies all users is not easy (I’ve tried). In addition, the variability and the wide options makes “getting it right” difficult.
On any given new hire, you may be presented with multiple “issues” when completing the form. The employee may not be providing you with updated information. It may also be your first time encountering the type of documentation being presented.
On the other hand, the employee is provided with many options for presenting identity and work authorization documents. The larger the pool of options, the more variability there is in completing the I-9 Form. Compounded with timeliness factors and/or remote hires, this process can be even more overwhelming.
The opportunities to make mistakes are therefore quite high. This is one reason why employers opt for an electronic I-9 solution like Guardian to simplify the process.
5. When checking I-9 Forms for accuracy, is it better to correct the original form or “recreate” a new form? Is it acceptable to put “recreated” at the top of the form?
This sounds like a question related to an internal audit. Spot-checking can be very dangerous if there are no clear-cut procedures in place on how to manage errors. (You may actually end up doing more harm by creating more errors on the form.) Rather, it’s a better idea to create an auditing plan in advance, with experienced legal counsel, before embarking on any audits. Having a strategy in place will help you tackle all the big and small issues, with a uniform approach. You can read more about pre-planning for self audits.
Imagine an ICE auditor came upon an I-9 Form that had “recreated” at the top of the page. What questions would the auditor ask? Why was the form “recreated”? How often were I-9 Forms recreated? Is this a pattern and does it constitute a practice of discrimination? What happened to the old form? What’s the organization hiding? The questions can go on ….
In the off chance that an employer could redo an I-9 Form without violating the timeliness rules, then of course it’s possible to create a new form. However, this scenario would probably be very seldom.
* * *
Stay tuned! We’ll be following up with a separate article devoted to E-Verify questions from our readers. Please subscribe to our newsletter for more timely updates.