Increased Audits Make Employer Compliance Even More Important

U.S. Citizenship and Immigration Services (USCIS) has released an updated version of its I-9 Handbook for Employers. The new edition provides several critical revisions to the prior version of the Handbook (also known as Form M-274). Employers can view and download the updated version at the USCIS website.

Key Highlights

Among the more notable updates to the Handbook:

  • Affirmatively states that an employer should not begin the I-9 process until the individual has accepted a job offer (see page 3; note that in a 1993 letter the Office of Special Counsel for Immigration Related Unfair Employment Practices had merely indicated it did not recommend pre-employment I-9 processing);
  • Confirms that the three business days the employer has to complete Section 2 of Form I-9 does not include the day of hire (see page 3);
  • Adds an extended discussion of “special” hiring categories: Lawful Permanent Residents, Refugees and Asylees, Temporary Protected Status (TPS), Exchange Visitors (J-1), Students (including STEM and Cap-Gap extensions), H-1B (including portability), H-2A Agricultural Workers, and automatic extensions of nonimmigrant status (the 240-day automatic extension rule for E, H, L, O, P, R and TN non-immigrants) (see pages 9-19);
  • Discusses how to handle employee name changes (see page 19);
  • Provides guidance on interruptions in employment, such as leaves, layoffs and mergers (see pages 20-21);
  • Includes a new chart for calculating I-9 retention periods (see page 23);
  • Reviews electronic I-9 system requirements (see pages 24-26);
  • Adds two paragraphs mentioning the requirement that certain federal contractors use E-Verify (see page 35);
  • Notes at various points the special E-Verify adaptations (for example the note at the top of page 5 reminding E-Verify employers that they can only accept List B documents that bear a photograph and information at page 19 regarding name changes);
  • Expands the “FAQ” section on pages 37-49, providing guidance on such items as name discrepancies (see Questions 26-28 at pages 41-42) and how to make changes on Form I-9 (see Question 33 at page 43); and
  • Updates samples of relevant documents, such as adding the new Permanent Resident Card (i.e., the “green card”).

Even with all of the clarifications in the 60+ page document, there are still many unanswered questions. Confusion is still possible in the “simple” process of completing I-9s (the Form’s instructions indicate that the public reporting burden for collection of this information is estimated at 12 minutes.) For example, the Social Security web-site indicates that there are over 50 different valid versions of the Social Security card, yet only one sample appears
in the Handbook. Furthermore, there are over 50 driver’s licenses and government identification cards that can be used as List B documents and at least 50 government subdivisions can issue birth certificates that can be used as List C documents.

This leaves an employer with thousands of possible document combinations it may accept for I-9 purposes. It is no wonder that many expect an electronic verification system (such as E-Verify) will become the system used by all employers within the next decade.

What Employers Should Do

In the meantime, the government continues to increase I-9 audits of employers. The pattern of increased worksite enforcement by the Department of Homeland Security’s Immigration and Customs Enforcement (ICE), which started in April 2009, shows no signs of slowing down. In the latest in a series of audit “blitzes,” more than 500 employers across the country were targeted to receive Form I-9 Notices of Inspection, the letter that marks the start of an ICE I-9 audit.

As a result, employers must continue to review and seek maximum compliance in maintaining their I-9 records. Reviewing I-9 policies, training persons responsible for I-9 completion, and conducting a self-audit of I-9 records are but a few of the steps an employer should consider. Completing these steps is likely to reduce potential fines and the chances of other

sanctions being imposed should your company be the subject of an ICE I-9 audit. Although it is not comprehensive (and perhaps no document can be), the new Handbook for Employers provides valuable information and is an essen-tial reference tool for those responsible for I-9 compliance.

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