Does My Business Need an I-9 Employment Eligibility Verification Procedure?

Does My Business Need an I-9 Employment Eligibility Verification Procedure?

The short answer to this question is YES. In this article, I’m going to go into a few of the reasons why an I-9 Employment Verification Procedure is a must for any size employer, and I will highlight a FEW key components your procedure should include.

KEY POINT: IF YOU ARE AN EMPLOYER, YOU NEED AN I-9 EMPLOYMENT VERIFICATION PROCEDURE

Don’t be overwhelmed at the thought of writing or following this procedure. The procedure exists to help you and your employees follow consistent work practices and, if it is written in accordance with the law, it will help you as a manager or owner guarantee administrators of your I-9 program aren’t making mistakes that will cost your business. The procedure can be simple; no more than two to four pages long depending on the size and complexity of your organization. You may do your own research internally and produce your own procedure, or you may hire an immigration lawyer to write it. The advantage of having a lawyer draft for you is that the research has already been done and the lawyer will most likely deliver a finished product for less than what it would cost you to self-produce.

KEY POINT: THE PROCEDURE SHOULD BE SIMPLE AND FOLLOW THE LAW

Below are several questions that should be answered clearly in your procedure for it to be effective.

1. Who must have an I-9 on file?

Generally, all employees must have an I-9 on file regardless of whether the employment is temporary, part-time, full-time, etc.

2. When does the I-9 get filled out?

3. Does your company or state’s law require an E-Verify report?

E-Verify is a federal government sponsored work authorization system. Some states require it, some organizations require it for themselves and their contractors. Your procedure should stipulate how E-Verify fits into your Work Authorization Verification program.

4. Who fills out which sections of the I-9?

Federal Law requires that the employee fill out section one of the I-9. The employer must fill out sections two and three.

5. What department is responsible for ensuring the I-9 is completed?

In complex larger organizations, this question can become more difficult to answer. For example, a company might hire hourly paid employees in a different department than salaried employees or a company might have several locations from which it recruits and hires. Your procedure should clearly stipulate which department is responsible for which part of the Employment Authorization Verification process.

6. Who is ultimately responsible for determining the authenticity of an identification or work authorization document?

The law clearly states that you as a business are not required to be expert document authenticators. However, you will find yourself periodically in a position where a suspicious document is called into question. Have a plan for who will make the final determination of whether to accept the document or reject it. Erroneous rejections can lead to allegations of discrimination. Unscrupulous acceptance of documentation can lead to a finding of knowledge with respect to having unauthorized workers employed.

The I-9 form contains the list of documents that are acceptable to prove identity and work authorization. Your procedure should specifically state that the company MUST NOT specify which documents employees are to submit. Doing so can lead to charges of discrimination.

7. Will you store I-9s in soft copy or hard copy? Where?

8. Which department is responsible for recordkeeping and storing the I-9s?

9. Do you require copies of the documents presented by the employee to be kept with the I-9?

This is not a legal requirement, but I consider it a good practice. If you keep copies of one employee’s documents, you should keep copies of all employee’s documents. Be consistent.

10. For how long do you keep an I-9 after an employee has been terminated, laid off, or quits?

11. How do you handle re-hires or re-verifications?

In some re-hire instances or with seasonal employees, re-verification isn’t necessary. Just be consistent in your application of this policy to every seasonal employee and re-hire.

Re-verification also refers to re-checking work authorization documents when work authorization is set to expire. A common problem in business is that the I-9 is done properly at the time of hiring, but in the case where an employee is authorized by work visa, the employer fails to re-verify before the visa expires. The employee must show their authorization has been extended or a new work authorization is in place. The responsibility is squarely on the employer to have a system in place that flags employees whose work authorization is about to expire and provide notice to the employee that he or she will be required to re-verify. Getting work authorization applications approved takes months, so I recommend plenty of advance warning for your benefit, and the benefit of your employee. Missing this step can lead to you unwittingly employing unauthorized workers.

12. How do you handle errors on forms that have already been completed?

There are specific ways to handle errors that are appropriate. These should be identified in your procedure.

13. Which department is responsible for maintaining the log?

It isn’t required by law, but I recommend that my clients maintain a log of all employees. You should be able to filter the list by date. If your business receives a Notice of Inspection, you will likely be required to produce a list of current employees and past employees whose employment has been terminated within the previous one to three years. Having the list readily available will save you time in the event of an audit.

KEY POINT: HAVE A GOOD PROCESS, DOCUMENT YOUR PROCESS IN A PROCEDURE, FOLLOW THE PROCEDURE

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