I will let you in on a little secret: you are not alone. Upon self-inspection, many employers have uncovered I-9 records riddled with the kinds of errors that could result in penalties and fines if they were ever audited by Immigration and Customs Enforcement (ICE) or the Department of Justice Office of Special Council (OSC). This one little Form, and its cohort E-Verify, are unimposing enough at first glance, and often lull employers into a false sense of security with their three, seemingly simple, steps. However the Form and accompanying data matching system (should you participate in E-Verify) are simply the foundation of a multifaceted process that requires mastery of its concepts and methods to consistently perform properly. The fact that the “Employers-with-Erroneous-I-9s” club is large, doesn’t mean that employers shouldn’t be concerned about the liabilities they could face in the event of an audit.
So what could happen?
Outside of a lot of extra labor for your organization to respond to an audit, and the potential for monetary fines (and the loss of contracts for Federal Contractors), the damage of an audit can be much further reaching. Unlike audits of your benefit plans (those of you with 401(k) plans know how painful even the annual outside accountant’s audit is), in an I-9 audit, your employees might be contacted by ICE or OSC directly and interviewed. In that case, you are also facing a situation that could erode employee trust and lead to any number of employee-relations and staffing issues. These kinds of problems are ones that linger long after any fines and penalties have been paid.
But We E-Verify, Doesn’t That Mean Our I-9s Are Fine?
Fine-able maybe. E-Verify is not a “safe haven” for employers. Employers do not get any brownie-points or gold stars for volunteering to participate. In fact, government agencies are using the trends from the data you enter into E-Verify to determine whether your process may have compliance issues, and initiating their own investigations, even when no employees have made any complaints. Even if you have no real issues, an investigation is disruptive and time consuming, two things that are a major drain on an employer’s productivity.
Many employers volunteering for E-Verify participation did so believing that it would ensure that they were not hiring undocumented workers, however the latest evaluation performed by Westat found that E-Verify failed to identify undocumented workers approximately 50% of the time. The prevalence of identity theft is a big problem for data-matching systems like E-Verify, and while photo matching as well as some other ideas (such as “locking” social security numbers that appear to be “misused”) may improve accuracy, it is clear that E-Verify is still not yet very good at performing the primary function that compelled employers to participate voluntarily.
What should employers do (or not do)?
Employers SHOULD NOT make the mistake of rushing into I-9 software and E-Verify in the hopes that their mere existence will solve any problems. These systems have the potential of making problems worse if employers do not first assess their application, interview, offer and onboarding processes and identify areas of weakness and consider what needs to happen to eliminate those weaknesses. Purchasing an online I-9 system that doesn’t fit your organization’s needs will simply increase the cost of your existing compliance woes. In addition, employers need to be aware that they cannot assess an online I-9 form system in the same manner as they would any other type of online form. Many standard online form practices, such as pre-population of data from other databases sources that share the same information, or certain types of data validation may not be viewed as a compliant I-9 practice.
Employers SHOULD assess their current state by, first ensuring they are clear on all the rules, then undergoing an internal audit, not just of the state of the Form I-9s themselves, but also of their hiring and onboarding practices to ensure they are properly limiting the possibility that a non-compliant practice, such as asking about citizenship status during an interview or prompting new employees to bring specific documents to complete the Form I-9 are not occurring. Proper review, audit and development of ongoing processes and procedures should always be done under expert guidance. It is here that compliance experts at Maggio + Kattar can help with a customized plan to meet the needs of your organization.