One adage holding true as much today as ten years ago is that employees are a company’s greatest asset. But, as talent professionals know, employees also create numerous legal responsibilities for employers both at the state and federal levels. From attracting, hiring, hiring, onboarding, employee health and safety, and more, talent teams are continually kept on their toes.
With talent teams today not only driving employee-related decisions but also business strategies and compliance, these leaders know that going above and beyond is not only preferred but necessary. One way to boost your I-9 management processes is to implement a standardized, written process, especially in a consistently shifting immigration landscape.
In this article, we’re going to explore five things that People teams should consider when implementing a standardized I-9 process.
Reviewing and Verifying Your I-9 Forms and Supporting Documentation
It was estimated 76% of paper I-9s potentially contain an error that could result in a fine from Immigration and Customs Enforcement, which is why it is critical to never assume that those old paper files are compliant and to create a process to regularly review your immigration program.
When standardizing your I-9 processes, focus on the review and verification of the forms and supporting documentation submitted by your employees. You can spot issues through this review, giving you the chance to correct them before they become more significant issues down the road.
The U.S. Citizenship and Immigration Services (USCIS) provides a thorough checklist on its website, walking employers through the review and verification process. The USCIS states that “[y]ou are not required to be a document expert. You must accept documents that reasonably appear to be genuine and relate to the person presenting them.”
However, if your employee presents a questionable document not appearing to be genuine must be rejected. In these cases, you can ask the employee to present another suitable document that satisfies the I-9 requirements. Remember, the standard is reasonableness, not expertise.
Standardize Your Storage and Retention Processes
Federal law requires that you retain your completed Form I-9s for each employee on your payroll for a certain period. Specifically, your internal processes should reflect that your retention requirements are “for three years after the date of hire, or one year after the date employment ends, whichever is later.”
The USCIS provides excellent guidance for how to store your I-9 forms. For example, when implementing your standardized I-9 process, remember that through the I-9s, you’re collecting a significant amount of personal information. When storing these documents, keep this in mind so you don’t have sensitive information fall into the wrong hands, creating a breach of confidentiality or data security.
At the same time, when storing your forms, they should remain accessible for inspection by authorized government officials. In the event of an audit, companies must produce the I-9s for ICE within three business days.
In balancing these interests, talent leaders should choose on-site or off-site storage options, separate from employees’ personnel files. Additionally, you can store these forms on paper, microfiche, or electronically with appropriate security measures and controls in place. SHRM recommends creating copies before handing over the original I-9s to ICE in the event ICE misplaces a form or this is some other mistake in chain of custody.
Once your retention period lapses, you need to identify how much longer you’ll retain and store the forms. When you’re ready to destroy these documents, be sure to have policies in place that address the way you dispose of the documents while keeping confidential information, well, confidential.
Conduct Internal Audits
Another way to standardize your immigration efforts is to conduct and document internal audits, helping you to identify issues and mistakes before the government does. When documenting an internal audit process, the Department of Homeland Security Immigration Customs and Enforcement (ICE) and the Department of Justice Immigrant and Employee Rights Section (IER) published detailed joint guidance for employers implementing this proactive step.
According to the Departments, “[t]his guidance is intended to help employers structure and implement internal audits in a manner consistent with the employer sanctions and anti-discrimination provisions of the Immigration and Nationality Act (INA), as amended 8 U.S.C. §§ 1324a, 1324b, and does not insulate employers from liability under either provision.” By creating an objective policy for internal audits—that is followed and applied consistently—you can better protect against unfair or discriminatory decisions.
When creating a standardized internal audit process, consider:
- The purpose, frequency and scope of the audit
- Any communication to the employees about the audit and what they can expect in the process
- Documentation of any communications with the employees
- The procedure for correcting any deficiencies or errors discovered in the audit
- The procedure for correcting the use of the wrong version of the I-9 form
- The procedure for taking corrective action
Organizations may choose to use a third party to conduct an internal I-9 audit; however, this does not relieve the employer of any potential fines or penalties resulting from a governmental inspection.
Consider Your Remote Employees
There’s no question that the global pandemic has changed how, when, and where we work. It’s also changed how we comply with somewhat outdated laws as well.
For I-9 compliance, talent leaders must create or update their policies for remote employees, something that wasn’t given considerable thought before COVID-19 sent us all home to our kitchen tables. And, the Department of Homeland Security (DHS) and the USCIS have been particularly aware of the problem remote work has created for I-9 compliance.
As of April 1, 2021, DHS updated its guidance on I-9 requirements and remote workers. According to the spring announcement, “the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.”
Remote employees, on the other hand, are temporarily exempt from this physical inspection requirement if they were hired on or after April 1, 2021, “until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”
This new guidance does not apply to workers employed on or after March 20, 2020, which is when DHS first started issuing more flexible guidance, shortly after the onset of the pandemic.
Keep Up with Changes in the Law
As most talent leaders already know, legal guidance has been evolving and pivoting since the spring of 2020. Because of this, talent professionals must keep up with any changes in the law as we begin to emerge from the global pandemic into this “new normal” of work.
For example, regarding the remote employee guidance mentioned above, DHS stated that “[g]oing forward DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.”
To stay up to date with employee-related issues or changes in the law that impact your organization, modern companies are leveraging experiences and responsive immigration vendors to assist them to optimize their immigration I-9 program.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.