I-9 in the New Administration

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Form I-9 and E-Verify in the new administration

2009 is a new year with a new administration, but I-9 employee eligibility program management challenges remain the same. And what’s to become of E-Verify?

E-Verify History
The government developed E-Verify, an online national database, so that employers could electronically verify employees’ right to work in the United States. Some states require E-Verify for all employees working on state contracts, and other states require it for all employees. For employers not yet affected by these regulations, E-Verify is a voluntary step that can help their organizations reduce the risk of penalties and raids.

In June 2008, former President Bush issued an Executive Order requiring all federal government contractors to check employees through E-Verify; however, this Executive Order did not go into effect prior to the inauguration of the Obama administration.

How will the new administration affect employment eligibility management?
Although it’s too early to tell where the new administration will ultimately stand on immigration reform, so far there has been a mix of messages. On one hand, President Obama has made it clear that he plans on cracking down on employers who hire undocumented immigrants, and he appointed Janet A. Napolitano as the Secretary of Homeland Security.

Napolitano, former Governor of Arizona, is well known for implementing into law the nation’s harshest penalty for employers who knowingly hire illegal immigrants. Further, on January 30, 2009, Napolitano issued an immigration and border security action directive requiring many department offices to review and assess the plans and policies of immigration reform, including electronic employee verification. These actions suggest that the new administration may be heading towards strict employee verification policies.

On the other hand, the administration has projected a lenient tone by suspending the rule requiring the mandatory use of E-Verify for federal contractors and subcontractors until further review to take place in May 2009. In addition, they have pushed back the date to April 3, 2009, when companies will be required to use the new I-9 form, originally set to take effect on February 2, 2009. The most significant change is that expired supporting documents are no longer acceptable.

One message that is clear: throughout the changes, companies will be required to stay informed and compliant.

Keeping I-9 Employee Verification Programs Compliant
A fully compliant I-9 management program incorporates much more than E-Verify. Using the E-Verify system correctly is a key part of a diligent employment eligibility verification program today, but in itself is not enough, as many companies have found out the hard way.

Some organizations run individuals through the E-Verify database as one step in the I-9 process, but manually manage a paper-based I-9 form collection and maintenance system. This approach can often result in procedural difficulties and may open the organization up to fines for improperly completed forms.

Challenges with a Paper-Based I-9 System
Paper-based systems can present procedural and compliance challenges. Processes are inefficient and the sea of paper collected from office to office becomes difficult to manage. I-9 forms and supporting documents must be completed, filed and updated correctly to avoid penalties. At $500 to $1,000 per incident, the total fine can add up quickly. One company racked up charges of $16,000 for a single I-9 form.

If a company replicates a simple procedural mistake on each employee I-9 form, the costs can skyrocket. Items that can result in steep penalties include mistakes in form completion, incorrect supporting documentation, untimely completion, and lack of good tracking. Electronic management of the I-9 process and the use of E-Verify are critical steps for a compliant employment eligibility verification program that reduces the risk of penalties.

In a paper-based system, even with the most carefully completed documents, it is difficult to create effective tracking, follow up and reporting methodologies. These often overlooked components of an employment eligibility verification program are of the utmost importance as many kinds of work authorization documents have expiration dates that must be tracked and resulting actions that must be taken. If these responsibilities go unaddressed, fines and penalties may ensue.

Electronic I-9 Management
By automating the I-9 program, companies can alleviate many of the challenges inherent in paper-based systems and ensure their program remains effective and compliant. An electronic process automates form completion to prompt users to enter full and correct data in the proper fields and collect the appropriate documents, depending on the individual’s work status. This automation reduces errors that could be extremely costly and mitigates the risk of non-compliance.

An electronic I-9 program should also include automated and instant E-Verify checks to simplify that process.
Some electronic I-9 systems are continuously updated as government regulations change at the federal, state and even local level, to guide users automatically through the proper procedure, even as the requirements change, for constant compliance. Continuously automated updates make it much easier for companies to keep up with changing regulatory requirements and update their hiring procedures across the country accordingly to maintain compliance.

Other key benefits of managing the I-9 process electronically are that it eases collection, storage, data access and auditing processes and improves follow up procedures on work authorization expirations since e-mail alerts can be set up as reminders for users.

As I-9 regulations change and enforcement increases, it can be easy to get hung up on the requirements and complications of E-Verify. It is critical to stay abreast of developments to keep your organization’s procedures compliant. However, as high-profile examples have shown, E-Verify is not enough. It’s important to put in place a comprehensive I-9 program that meets both the regulatory and business requirements of today and can evolve and expand as requirements change.

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HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.