Mr. Wildes

Hospitality Law

Top Tips for Form I-9 Compliance

By Michael Wildes, Partner , Wildes & Weinberg

Around this time last year we told you about the importance of the Employment Eligibility Verification Form I-9, which all employers have been required to keep on file for their employees since 1986. Form I-9 requires that new hires provide specific documents which establish their right to work lawfully in the U.S. to their new employer within three days of hire. Since taking office, President Obama has directed the Immigration and Customs Enforcement agency (ICE) to strictly enforce sanctions against employers who knowingly hire unauthorized workers. That trend continued throughout 2010 and all signs seem to indicate that the same will hold true for 2011.

The hotel industry is closely watched as it bears a reputation for being a hotbed of unlawful employment. Hoteliers should feel 100% confident that their I-9 forms are kept in good order. In the event of a government investigation, you do not want any surprises and ignorance is never an excuse before the law. Possible repercussions for improperly handled or maintained I-9 forms may range from civil penalties of $110 to $1,100 per paperwork violation, to criminal penalties of up to $3,000 and/or 6 months imprisonment per employee for engaging in a pattern of knowingly hiring unauthorized aliens.

Every employee hired after November 6, 1986 should have an I-9 form on record demonstrating that a good faith effort was made to verify that person’s employment eligibility. The seasonal nature of the hotel industry, however, often demands that employees be hired, let go, and sometimes rehired as the volume of business requires. When an employee is rehired, one must once again undertake the responsibility of verifying that that person’s eligibility to work in the United States has not changed. Depending upon the given circumstances, a rehire may be reverified on either Section 3 of his or her original I-9 or on a new form entirely.

Verifying employment eligibility is a complicated task for all businesses but it poses particular difficulties for the hotel industry. As a high-volume business with regular turnover, juggling employment eligibility verification forms can be a deceptively tall order. As we told you last year, taking the time to familiarize oneself with Form I-9 compliance is a worthwhile investment to avoid weighty fines or possible criminal penalties.

Though the I-9 form itself comprises just one page, filling it out correctly can be a surprisingly difficult task, as evidenced by the nearly sixty-page booklet that accompanies it. The recently revised M-274 Handbook for Employers is published by U.S. Citizenship and Immigration Services (USCIS) and is an excellent resource for employers across all industries. We’ve taken a moment to recap some of the tips and good practices that we shared with you before, followed by even more tips that put you on the path to good compliance:

1. Read and refer to the M-274

The handbook provides a “411” on I-9 completion and can answer almost any question you have about verifying employment authorization. Verifying a U.S. citizen worker can be fairly straightforward but if you have foreign nationals on board, you may find yourself stymied by the documents they should provide. The M-274 addresses nearly any scenario you might possibly encounter. A copy of the new version can be found for free at the following web address: http://www.uscis.gov/files/form/m-274.pdf

2. Learn what hiring practices are considered discriminatory and ensure that you don’t engage in them

Given the atmosphere of strict government enforcement, it might be easy to get carried away and unwittingly engage in unfair, discriminatory practices while trying to avoid hiring unauthorized workers. Make sure that you follow these general rules:

• All employees should be treated equally regardless of citizenship or immigration status, national origin or native language. • Do not set different employment eligibility verification standards for citizens and noncitizens. • All employees should be permitted to choose which documents they wish to provide for verification of their employment authorization and the employer may not request that any particular document be provided. • Employers should not request to see work authorization documents before hiring on the grounds that someone seems “foreign” or is not an American citizen. • Do not refuse to accept a work authorization document because of a future expiration date. • Do not limit jobs to U.S. citizens unless citizenship is required for the specific position by law.

As outlined in the M-274 handbook, you may legally prefer a U.S. citizen or national over an equally qualified alien for a specific position but may not adopt a blanket policy of always preferring citizens over non-citizens. Hiring discrimination is also covered at some length in the M-274 and when in doubt, again, it is an excellent reference text.

3. Store your I-9s safely — and possibly electronically

In the event of an ICE inspection, you would be given three days’ notice before making all forms available to the Department of Homeland Security, the Office of Special Counsel or the Department of Labor. There are several electronic I-9 compliance programs on the market and many feature the ability to check for basic errors and send reminders when work authorization requires reverification. However they are more expensive than the paper version (which is free) and none are completely fail-proof. If you opt to file using the physical I-9s, it is recommended that you store them independently of personnel files so that, in the event of an audit, sensitive material will not be shared.

4. Take some time to learn about E-Verify and decide whether or not it works for you

E-Verify is a free web-based verification system that was created by the Department of Homeland Security. The service is voluntary for most employers (federal contractors are among those for whom participation is mandatory) and more than 216,000 employers currently participate. Rather than determining employment eligibility yourself, I-9 forms are completed and an electronic query is submitted to the E-Verify database. The system responds with either an approval message or a tentative non-confirmation. The latter does not necessarily indicate that the employee is not authorized to work but may stem from a documentary error (such as failing to register a name change) and will require additional steps to verify eligibility. Use of the E-Verify system has been strongly promoted by the U.S. government but the system is not without its hiccups. You may want to review the program yourself before you decide whether to use it or not. One thing to keep in mind is that once you use E-Verify for some employees, you should use it for all. You may not verify selectively.

5. Perform internal audits regularly

The best way to prepare for an ICE audit is to preempt one. We recommend engaging a professional third-party to perform an audit of your I-9 forms so that small but potentially substantive errors can be detected. Performing an internal audit also carries with it the benefit of establishing a “good faith effort,” demonstrating to the government that you have completed and reviewed your I-9 forms to the best of your ability, and may therefore spare you certain civil and criminal charges should they be levied against you. Performing even a sample audit may reveal flaws in your I-9 management and maintenance that can be avoided in the future, thus ensuring that employees will be properly documented going forward.

6. Provide I-9 training for your staff

Include all human resource personnel as well as other employees who are in the field and who are responsible for I-9 completion.

7. Review and understand the retention requirements

Essentially, for current employees, the I-9 must be retained throughout the life span of the employment. For terminated employees, the I-9 must be retained as follows: three years from hire or one year from discharge, whichever is later. We suggest the creation of an excel spreadsheet to keep track of the hire date, the termination date, and the retention date. Once the retention date has passed, the I-9 may be purged.

8. To photocopy or not?

Set company policy regarding the photocopying of Section 2 documents. Decide what is best for your business. But remember, you must be consistent.

9. Establish a “tickler” system

Alert yourself to fast approaching deadlines for I-9 completion as well as approaching work authorization expiration dates.

10. Appoint a compliance officer

Task one individual with the ultimate responsibility for I-9 completion and the authority to speak with ICE, should the need arise.

11. Contact competent counsel

When in doubt, ask an expert. Before your business is issued a subpoena, consult with an immigration attorney.

Remember, ignorance is no defense! Time spent on proper I-9 compliance is never wasted.

Michael Wildes is the Mayor of Englewood, NJ, an immigration lawyer and a former federal prosecutor. As partner of preeminent immigration law firm Wildes & Weinberg, Wildes has become internationally renowned for having represented the United States Government in immigration proceedings, for the successful representation of several defectors who have provided hard-to-obtain national security information to the United States and, most recently, for obtaining an injunction to prevent Libyan leader Muammar Gaddafi from residing in New Jersey during the 2009 UN Summit. Mr. Wildes can be contacted at 212-753-3468 or mwildes@wildesweinberg.com Extended Bio...

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