One of the most important issues facing our small and medium-size business clients is compliance with the myriad of state and federal immigration laws. In fact, many of our business clients, despite their intentions and their best efforts to be compliant with the regulations administered by the United States Department of Labor, the United States Department of Homeland Security and the State of North Carolina, are concerned to learn that they are unwittingly in violation of at least a few of these complicated and rapidly-changing rules.
For most of our business clients, there are two key components to ensuring that every employee has the proper authorization and documentation to work in the United States: the I-9 form and the E-Verify System. Within the past three months, the regulations that govern both pieces have been substantially changed by several immigration regulations, and we strongly encourage all of our clients to contact us to discuss their current immigration practices. Non-Compliance with these regulations, even if accidental, can result in severe civil money penalties and even criminal liability. Under North Carolina Gen. Stat. § 64-26 et. seq., employers with more than twenty-five (25) employees MUST begin using the E-Verify System effective July 1, 2013; North Carolina employers with more than one hundred (100) employees were required to being using the E-Verify System by July 1, 2013.
Form I-9
Most employers are already aware of the basic requirements of the Form I-9 and the
documents that an employee may use to prove his or her eligibility to work in the United States. Most employers are not aware, however, that failure to strictly comply with the requirements of Form I-9, including the time requirements, can open the employer up to civil money penalties in the amount of $1,100 per I-9, and in some cases, criminal liability. With recent changes in the Obama Administration, the United States Citizenship and Immigration Services (USCIS) division of the United States Department of Homeland Security (DHS) is aggressively auditing employers and their records for compliance. These investigations are time-consuming, extremely costly, and often result in directives that the employer terminate large portions of the workforce. In most cases, proper record-keeping and documentation will satisfy USCIS investigators and can ensure that investigations are quickly closed.
Form I-9 must be completed by every new employee and by the employer, whether or not the employee is a US Citizen. Form I-9 is broken into two parts: Section 1, which must be completed by the employee; and Section 2, which must be completed by the employer. On March 8, 2013, USCIS, the agency charged with administering the I-9 program, released a revised Form I-9. Beginning May 7, 2013, the only acceptable I-9 Form for new employees is the 03/08/13-revision. Employers are responsible for providing the forms to the employee, ensuring that the employee fully completes the form, and for retaining the completed Form I-9 and copies of any required documentation. Completed forms must be maintained by the employer and should not be sent to USCIS.
Section 1 must be completed by the employee no later than the first day of employment. Section 1 should never be completed before the employee has accepted a job offer from the employer. Section 1 collects basic identification information on the employee, and also asks the employee, under the penalty of perjury, to attest to citizenship status as a: 1) A US Citizen; 2) A non-citizen national; 3) A lawful permanent resident; 4) An alien authorized to work.
Section 2 must be completed by the employer within three (3) business days of the employee’s first day of employment. If an employee begins employment on a Monday, the employer must complete Section 2 by Thursday of that week. However, if the employee is hired for less than three business days, Section 2 must be completed no later than the first day of employment. Section 2 requires employers to physical examine original documents presented by the employee to verify that employee’s right to work in the United States. The “List of Acceptable Documents,” attached to each Form I-9, provides three lists of documents that an employee may provide to establish his or her identity and his or her right to work in the United States. An employer must examine either one document from List A (List A documents establish both identity and the right to work in the United States (e.g., Passport, Green Card)), OR one document from List B (List B documents establish identity (e.g., state-issued identification card or driver’s license)) and one document from List C (List C documents establish employment authorization (e.g., Social Security card)). After examination of the documents, the employer must complete Section 2. An employer may choose, but does not have to, make photocopies of the documentation offered by the employee. If the employer chooses to make photocopies of the documentation, the employer must do so for all new hires and must retain those photocopies with the completed Form I-9. Making photocopies of documents does not relieve the employer of his or her duty to complete Section 2 of Form I-9. Completed Form I-9s must be maintained by the employer for three (3) years from the date of hire, or one year after the employee’s last day of work, whichever is later. Additionally, completed I-9 records must be maintained in such a way that they are easily accessible and must be surrendered to investigators from DHS, USCIS or other federal agency in response to a lawful request. We strongly encourage our clients who have not update their Form I-9 procedures recently to contact us to discuss a compliant Form I-9 system to avoid unnecessary disruptions to your business.
E-Verify
The second piece of the immigration compliance for employers is the use of the E-Verify
System. This system, which may already be familiar to some corporate clients, must be used by all North Carolina employers with more than 25 employees as of July 1, 2013. The use of E-Verify does not alleviate the employer’s Form I-9 obligations; E-Verify is designed to be used in addition to Form I-9.
The first step in beginning the E-Verify program is the execution of the Memorandum of Understanding (MOU) between the employer and the Department of Homeland Security. The MOU can be obtained by visiting the USCIS E-Verify website at www.uscis.gov/everify. Our North Carolina clients with more than 25-employees should review the MOU and contact us to discuss the terms of the MOU and enrollment in the E-Verify System.
Once an employer has enrolled in the E-Verify System, each new hire, termed a “case,” will be entered into the system. At that time, E-Verify will provide confirmation, in most cases instantly, that the employee is authorized to work in the United States. In some instances, the employer will receive notice that authorization to work cannot be instantly provided and that there is a “DHS Verification in Process.” In these cases, the employer must check E-Verify to ensure that the authorization has been provided, which will usually occur within twenty-four hours. In other instances, however, E-Verify will provide the employer with a “Tentative Non-confirmation.” Tentative Non-confirmations can occur on the basis of mismatches with either Department of Homeland Security records or Social Security Administration records. There are many legitimate reasons why the E-Verify System may return a Tentative Non-confirmation, and both the employee and the employer have obligations if authorization cannot be provided.
For both SSA and DHS Tentative Non-Confirmation decisions, the employee must choose to either contest the non-confirmation or not to contest the non-confirmation. If the employee chooses not to contest the non-confirmation, the tentative non-confirmation becomes a Final Non-Confirmation, and the employer may terminate the employee on the basis of E-Verify. In the event the employee elects to contest the non-confirmation, the employer must refer the employee, through the steps provided in E-Verify, to the appropriate agency. That agency will then work with the employee to resolve the non-confirmation. Employees who elect to contest the non-confirmation must be permitted to work until the issue has been resolved.
The rapidly-changing and complicated federal immigration regulations require knowledgeable attorneys who have experience in navigating their complex requirements. If you have any questions regarding I-9 requirements or audits, with the new E-Verify System, or any other employment-related issue, contact our experienced team immediately.