Compliance Tip of the Week
With Brian Elfrink and Gordon Middleton
I-9 Compliance Tips
For more I-9 compliance related tips, click and drag each tip to the left.
With the extension of the I-9 Covid policies until 8/31, employers should be reminded that a Standard Operating Procedure, (SOP), document for all I-9 processes is a key component to any I-9 compliance plan. The SOP is helpful in that not only does it clearly lay out compliance policies for employers with numerous I-9 completers, it also assists auditors in evaluating forms. A clearly laid out SOP can be a key component to establishing a good faith compliance effort that can help mitigate or even eliminate any potential fines.
A good SOP will illustrate an employer’s position regarding such items as:
- Completion of the I-9 prior to the first day of work for pay.
- How the employer handles rehires in the I-9 process.
- Handling of more complex items such as reverifications, or specific E-Verify cases.
SOPs are a highly useful part of the overall I-9 process, and employers who have yet to develop a sound plan should revisit that process now, prior to the end of the Covid process, when remotely completed forms must be reviewed and normal documentation policies return.
May 28,2021
I-9 COVID Policies
Many employers hire employees months ahead of the start date, and a percentage of those begin the onboarding process prior to the first day of work. This often leads employers to question how far in advance they may create an E-Verify case for an employee with a future start date.
An employer may create a case in E-Verify for an employee whose first day of employment is up to 90 business days in the future. The employee’s first day of employment is the date the employee began (or will begin) work for pay. This date appears in Section 2, Certification on Form I-9 next to The employee’s first day of employment (mm/dd/yyyy).
The ability to select a future first day of employment does not change any policy, including the rule that prohibits prescreening. A prospective employee must have accepted an employment offer before you may complete Form I-9 and create a case in E-Verify. The offer and acceptance rule has long been applicable to the I-9 itself, and carries over to the creation of E-Verify cases.
May 17,2021
E-Verify: Future First Employment Date
The COVID-19 pandemic has shifted a number of previously in-person positions to remote work and telecommuting, and many employees have moved out of state from their usual office locations for personal or financial reasons.
Remote employees are generally subject to the laws of the city and state where they are physically located and perform work. There may be exceptions for employees who are temporarily located in a state or not considered based within a state. With employees working remotely outside their usual office locations, employers may need to familiarize themselves with the state and local employment laws of other jurisdictions. Failure to comply with state and local posting requirements, leave entitlements, wage and hour laws, etc. can result in liability for lost wages, penalties, noneconomic damages, and attorneys’ fees.
Employers should audit remote employees to ensure they are keeping abreast of all compliance requirements in all locations. Failure to do so could result in serious penalties and lead to larger compliance investigations.
May 4,2021
Remote Employees
On March 29, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that:
The 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021.
The deadline for submitting 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021. The data collection period for this year is extended to 12 weeks (from 10 weeks) to provide employers additional time to file in recognition of how differently the pandemic has effect workplaces and the requirement to submit two years of EEO-1 data.
The EEO-1 Component 1 collects workforce data from employers with 100 or more employees (and federal contractors with 50 or more employees). The EEOC will begin to formally notify EEO-1 filers via email beginning on March 29, 2021 and filers should begin preparing to submit data in anticipation of the April 26 opening of the data collection period. EEO filers can review the agency’s website for more information about data collection updates and resources to assist with their submissions.
April 11, 2021
ICE Flexible Guidelines
“ICE has once again extended the flexible guidelines pertaining to the physical presence of employees during the I-9 process. Employers may now continue to make use of remote processes for Section 2 verification until May 31, 2021. (The official ICE announcement may be found at https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility)
In addition to the extension, ICE also provided new guidance regarding employees working remotely under COVID guidelines, stating that employees hired on or after April 1, 2021 are exempt from the in-person verification requirement “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.” (These guidelines and the original March 2020 announcement may be found at https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance)
CIC+ will continue to monitor ICE guidelines relating to this topic and provide information on an ongoing basis.”
April 2, 2021
ICE Flexible Guidelines
“On occasion an employee with a completed I-9 may notify their employer that they used a false identity on a previously completed I-9, but indicates they are currently authorized to work. In such an instance, the employer should complete a new I-9, write the original hire date in Section 2, attach the former I-9 and provide an explanatory memo. The employer is under no obligation to terminate the employee.”
March 3, 2021
I-9 False Identity
“Many employers struggle to complete I-9s in a timely manner. This is a non-correctable, or “substantive” error which is subject to a fine. Employers who struggle with timeliness should consider completing the entire I-9 prior to the first day of work for pay. Once an offer and acceptance has occurred, the employer may complete the I-9 in its entirety. Employers who use E-Verify should keep in mind that an E-Verify case may only be created up to 90 days prior to the employee’s first day of work for pay.”
February 24, 2021
I-9 Substantive Errors
“There are two types of errors that can occur with Form I-9: Technical and Substantive. Technical errors are correctable, and the employer is given 10 business days to correct forms with these errors. Substantive errors are not correctible and are subject to fine.
Examples of Technical Errors include things like failure to include other names used, not supplying N/As where required, and not providing the employer representative’s title in Section 2, among numerous other items. These are not generally hard to correct, but the problem is they are usually so numerous the employer can not correct them in the allotted timeframe. Those that remain uncorrected move to Substantive Errors at the end of the 10 day period and are subject to fine.
Examples are Substantive Errors include failure to timely complete the I-9 in a timely fashion, missing I-9s, missing signatures, and incorrect documentation, among other items. Again, Substantive Errors are not correctible.”
Feb 17, 2021
I-9 Error Types
“An Immigration and Customs Enforcement (ICE) “Notice of Inspection” or NOI, typically gives an employer 72 hours to collect and submit the information requested. ICE generally asks for I-9s for either all active employees at a location, or I-9s for employees covering a specified date range.
What many employers don’t know is that even if they have completed I-9s for an individual, if that individual never started work for pay, the employer is under no obligation to produce that I-9, since the individual was never an actual employee and would not show up on payroll records.”