I-9 Electronic Compliance: 25 Questions All Employers Should Ask

Yesterday, the U.S. Immigration and Customs Enforcement's (ICE) Office of Homeland Security Investigations (HSI) issued a press release announcing a settlement with retailer, Ambercrombie & Fitch, involving a fine totaling $1,047,110 for violation of the Immigration and Nationality Act.  Although limited details were released, the ICE stated that the violation was related to an employer's obligation to verify the employment eligibility of its workers.

The violation was uncovered after a Form I-9 inspection of Ambercrombie & Fitch stores in Michigan in November of 2008 which revealed a number of deficiencies in Ambercrombie & Fitch's electronic I-9 verification system. Ambercrombie & Fitch cooperated fully with the ICE and has since taken several measures to revise its electronic verification program. In the ICE press release special agent in charge of ICE HSI for Ohio and Michigan, Brian M. Moskowitz stated, "Employers are responsible not only for the people that they hire but also for the itnernal systems they choose to utilize to manage their employment process and those systems must result in effective compliance."

According to Ann Allott of Allott Immigration Law Firm which specializes in I-9 corporate compliance, there are 25 questions that all employers should ask before purchasing an electronic verification system.

1)      Can you produce all current Form I-9s and all terminated Form I-9s, sorting out those that should be destroyed or at least not shown within three business days?

2)      Do you offer a training program for field agents who will be completing the Form I-9?

3)      Do you offer training concerning the use of E-Verify, SSNVS?

4)      How are you complying with various state law I-9 issues?

5)      Who observes the prospective employee complete Section 1?

6)      Who observes the prospective employee's physical appearance and observes whether the prospective employee appears to look like the documents of the individual who is applying?

7)      Can an applicant complete the form without including the Social Security number?

8)      Where do you store the date of termination?

9)      What do you do when an employee changes his or her name for payroll purposes?

10)  How and where are you storing copies of the documents provided by the applicant?

11)  How are you storing the E-Verify certification or noncertification?

12)  How are you storing SSNVS results?

13)  What sort of tickler system do you have for receipts for EADs and other temporary documents?

14)  What do you do when an applicant enters the United States on an L-1A and E-Verify will not certify that the applicant is eligible to work?

15)  What do you do when an applicant shows a Native American card and E-Verify will not certify the applicant?

16)  What do you do when the foreign applicant applies for a Social Security number and is rejected by the SSA without a receipt because its system does not yet have his or her entry into the United States?

17)  How secure is your system?  The personal information on the Form I-9 is very sensitive and it is important to know who if anyone can get access to this information.

18)  Do you have insurance to cover losses if, as a result of your system, an applicant is successful in collecting double wages at USDOJ/OSC because the applicant was not hired?

19)  If you do not produce the documents according to a legitimate government request within three days, are you insured for the company's losses?

20)  Do you also advise about policies that should be in place to keep the system up to date and up to government standards?

21)  Do you recommend the use of IMAGE?

22)  Do you train your clients on how to recognize fake documents?

23)  If an employee is rejected because he or she presented documents that did not match the E-Verify document, such as an I-551, and the same applicant comes back with a new name and new documents and passes E-Verify, do you make any recommendations?

24)  What number from the I-551 (lawful permanent resident card) are you using for Section 2, List A if it is presented?

25)  How do you handle Form I-9s if an employee is transferred to a new location?

ANN ALLOTT - Immigration Lawyer

Ann Allott was named Super Lawyer 2009 and Best Lawyers© in Colorado 2009. She is an expert in employer sanctions law, a nationally recognized speaker and author of "The Employer Handbook on the Hiring of Authorized Workers." She has been listed as one of Denver's Top Lawyers since 2001 by 5280 magazine and was highlighted in Colorado's Super Lawyers magazine in 2006.

For additional assistance with I-9 Compliance, check out the LexisNexis Immigration Enforcement: I-9 Compliance Handbook.