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A Compliance Plan Is Key to Surviving a Worksite Investigation
The Form I-9 is used to document the verification of identity and authorization to work of employees, both citizens and noncitizens. The form requires employees to attest, under penalty of perjury, to their identity and citizenship or immigration status. Employers must examine acceptable documents presented by employees as evidence of their claimed identity and work authorization. Here are some compliance pointers to consider:
- Only use the current version of Form I-9, which has a revision date of July 17, 2017, and an expiration date of August 31, 2019.
- All employees must complete Section 1, “Employee Information and Attestation,” any time after an offer of employment has been accepted, but no later than the first business day of work for pay. Preparer and/or translator certification information is required if an employer or authorized representative assists an employee with completing Section 1.
- In completing Section 2, “Employer or Authorized Representative Review and Verification,” the employee must present documents from the List of Acceptable Documents to the employer. This list is attached to the form. The employee may provide one List A document to confirm identity and work authorization or one document from List B for identity and one document from List C for work authorization. The employer may not require or suggest to the employee which documents to provide. A common mistake is divulging what most or other employees have provided.
- Section 2 must be completed by the employer or employer’s representative no later than three business days after the employee begins work for pay. For example, if the employee starts work on a Monday, Section 2 must be completed by the end of the day on Thursday.
- Employers must examine unexpired, original documents with one exception—a certified copy of a birth certificate is acceptable.
- Employers must accept documents presented by an employee if the documents “reasonably appear to be genuine and relate to the employee.” Don’t be fooled by the vague wording “reasonably appear.” Employers don’t have to be experts. However, they must take document appearance seriously and review them in good faith.
- Employers must retain original Forms I-9 for three years after the date of hire or one year after the date that employment ends, whichever is later. To prevent unauthorized individuals from accessing employees’ personal information, store Forms I-9 separately from other personnel files.
- To avoid discriminatory behavior, employers must either keep copies of presented list documents for all employees or make no copies.
- The employer completes Section 3, “Reverification and Rehires.” Employer policies should include a scheduling system that accounts for expiration dates on documents for employees with temporary work authorizations. In most situations, reminding employees at least 90 days before the expiration date will allow sufficient time for employees to obtain new or revised documents. Do not reverify U.S. citizens and nonresident aliens (passports or passport cards), lawful permanent residents (Form I-551, U.S. Permanent Resident Card), or any List B documents. When reverifying, the employee must present a current List A or C document showing authorization to work. Receipts for a lost, stolen, or damaged document are acceptable.
An option for most employers is E-Verify, a web-based system operated by the U.S. Citizenship and Immigration Services (USCIS) in cooperation with the SSA. Certain federal government contractors and employers in some states are required to use E-Verify. When participating in E-Verify, the employer enters information from the employee’s Form I-9 into the system, which then electronically matches that information against government databases to determine if the employee is authorized to work in the United States. Therefore, even when using E-Verify, an employer must have compliant Forms I-9 on file.
Employers with questions about Form I-9 or E-Verify may contact USCIS’s Verification Division Customer Care Office at 888-464-4218 or visit USCIS’s Form I-9 website, I-9 Central, at www.uscis.gov/i-9central and the E-Verify website at www.e-verify.gov.
Employers with questions about their internal Form I-9 or E-Verify policies and procedures or with concerns about an employee document may anonymously call the U.S. Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER), at 800-255-8155 (TDD: 800-362-2735).
There is a difference between a worksite audit and a raid. In a raid, ICE shows up at an employer’s door unannounced and without warning, hoping to catch employees and employers off guard. A raid usually occurs after an ongoing investigation reveals that an employer hired undocumented workers, often with full knowledge. When ICE arrives, agents present a criminal search warrant with a detailed description of what and where the agents will search and what they might seize. The warrant may include payroll, Forms I-9 and supporting documents, bank records, SSA documents, IRS Forms 940, Employer’s Annual Federal Unemployment (FUTA) Tax Form, as well as related employment, tax, and financial records. The employer is not required to answer any questions.
In an audit, ICE serves the employer with a Notice of Inspection (NOI) requesting all Forms I-9 and supporting documents as well as other documents. While the agents may show up unannounced with an NOI, they usually demand production of records within three business days. The agents may ask the employer to waive the three days. Immigration attorneys advise never to waive the three days because you may need them to prepare.
In both a raid and an audit, employers should consult with an immigration attorney before responding to ICE agents. Employers also should consider engaging immigration lawyers to review their employment verification plans, policies, and procedures.
A special thank you goes out to the participants in the APA’s Government Relations Task Force (GRTF) Subcommittee on Immigration for their assistance in preparing this article.
Alice P. Jacobsohn, Esq., is Senior Manager of Government Relations for the APA. Neither she nor APA is offering legal advice on immigration-related employment verification.
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