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The Integrity News
"objective risk management news"
Vol. XVI   No. 6
ISSN 1081-2717


The Integrity Center, Inc.  
September 14,  2007  

Form I-9 Update
( Employment Eligibility Verification )

& New Form I-9 Tools
( see "How We Help You" below )

Recall, EVERY employee whether U.S. Citizen or otherwise, must have a properly completed and current Form I-9 in their personnel file available for Federal Government inspection.   In fact, depending upon what rules are finally activated, you may be required to transmit those I-9 forms, or a summary list of them, to the Government.

In our last issue, we outlined the new enforcement rules for Employment Eligibility Verification IF the  Immigration Reform bill became law.   Congress could not agree on a bill to send to the President, so one was not signed into law.

This week we were about to send out a new issue  outlining the new Final Rule, by the Department of  Homeland Security ( DHS ), Division of U.S.  Immigration and Customs Enforcement ( ICE ),  published in the Federal Register, Vol. 72, No 157,  on August 15, 2007, to take effect September 14, 2007.

Then, on Friday, August 31, 2007, U.S. District Judge Maxine Chesney in San Francisco, issued a temporary  restraining order that prohibits DHS/ICE from  enforcing the new Final Rule.   A hearing is set for October 1, 2007 to consider the arguments of the  AFL-CIO lawsuit, and a separate suit by the American  Civil Liberties Union ( ACLU ) which alleges that the  DHS does not have the authority to enforce immigration  laws and would be misusing the Social Security  Administration ( SSA ) database which is the source of  the underlying "no-match" letters to employers, which  can then lead to letters to employers from the DHS/ICE  each called a "Notice of Suspect Documents".

Employment Eligibility Verification is being pursued by the Government and below is a Brief Review, some  Items To Think About, and How We Help You.


The Immigration and Nationality Act of 1952 ( INA ) outlined record keeping requirements for hiring any  person whether a citizen or alien.   The Immigration Reform and Control Act of 1986 ( IRCA ) sought to end unauthorized employment by imposing penalties  on employers who knowingly hire or continue to  employ aliens not authorized to work in the U.S.      The Illegal Immigration Reform and Immigrant  Responsibility Act of 1996 ( IIRIRA ) amended the  IRCA by reducing the number of acceptable documents  for completion of the Form I-9 ( which itself was last  revised  5/31/05 ).

The Department of Homeland Security now publishes  the Employer Information Bulletin:  "Penalties for  Prohibited Practices."   The new Civil fines, and the  Criminal fines and imprisonment, for various violations  are listed.   One of the sections is titled "Failure to  Comply with Form I-9 Requirements."   It says in part:  "In determining the amount of the civil penalty, the  following factors are considered: size of the business  of the employer being charged; the good faith of the  employer; the seriousness of the violation; whether  or not the individual was an unauthorized alien; and  the history of previous violations of the employer."      The Government is planning on using fine and fee  revenue to pay a portion of the enforcement costs.

The urgency of U.S. anti-terrorism efforts is driving  this topic of Form I-9 enforcement.   When enforcement  begins in earnest, you must be familiar with the safe harbor rules, the requirements, the procedures, and  the kinds and levels of penalties for failure to comply.


The Government understands document fraud.   In  the coming months, "The Administration will publish  a regulation that will reduce the number of documents  that employers must accept to confirm the Identity  and Work Eligibility of their employees".    This is  intended to make it easier for employers to be sure  that the documentation is authentic when it is  presented by the employee for completing the Form I-9.

The Government also plans to expand the Employment Eligibility Verification System, now called E-Verify, so  that employers have an online way to verify employment  eligibility --- BUT, only for new hires just ON your payroll.     The Government will require all Federal Contractors and  Federal Vendors to use E-Verify. However, from the DHS  website:  "Participation in E-Verify does not provide  protection from worksite enforcement."   The phrase  "Just On" means only within the first 72 hours.

The political interests that pressure Congress have made  sure that an employer CANNOT use the new system for:   (1) pre-employment screening, (2) checking previously hired employees, or (3) re-verifying employees who have temporary work authorization.   The way that they control that, is to automatically compare the dates of your E-Verify inquiries with the dates of your past and current payroll submissions.

The problem with only verifying employment eligibility AFTER you hire a person is the possibility of a Wrongful  Termination lawsuit.

Because the new system could ONLY be used for verifying  the employment eligibility of new hires just ON your payroll,  if the system identifies a person whom you must not continue  to employ, you must fire them.   That could set you up for the  possibility of a Wrongful Termination lawsuit.     You will not get your time and legal bills reimbursed by the Government.

You want to continue to do what you do now, and find out  BEFORE you hire someone if   "Joey is really Joey".   That is why since 1991, we have included in the report for EVERY  request for an SSN Verification, ID Verification, or Personal  Credit History, the results of washing that request against  the current quarter's Master Tape from the Social Security  Administration.   If any of the Government's 17 classes of  fraud appear on the SSA Master Tape for a given person,  they will also appear, each in a starred box, at the top of  your report for that person.

You also want to think about the concept of  "Constructive Knowledge", which is "knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition".   The reason that this is important is that if DHS/ICE determines that your company had Constructive Knowledge of an illegal event, the penalties  automatically increase in a very big way.


When you use our client interface to gather Job Apps, perform Background Checks, conduct Testing, maintain  Employee Files, and/or prepare your Payroll, a secure file is automatically built for each person, that only you can access.   From those individual files, you can conduct additional inquiries or prepare numerous reports.

One of the reports that you can easily prepare is a Form  I-9.   When you select "Form I-9", the form appears with  all of the person's data accurately filled in for Section 1.     You can then print the form and have the person fill in  Section 2.   Or, you can enter their Section 2 data online,  and print the Form I-9.   In either case, with Section 2 complete, the printed form is ready for signatures.

In all cases, your I-9 forms will have original signatures,  and in Government vernacular, those are "wet" signatures.     If you want to store an image of the signed Form I-9 in the  person's online file, you can just fax it to our image server  using the cover sheet provided, and an image of it will be  automatically stored online with their other reports.   You  can always recall and print any personnel report images.

If there is ever any doubt in your mind about the  authenticity of any documents presented to you for the completion of an I-9 form Section 2, you can ask us to verify the documentation as you do now.    We regularly help you determine if   "Joey is really Joey".

If you need to modify a person's Form I-9 for any  number of reasons, you just click on it and make the changes.   Our network keeps an ongoing log of all prior versions of each person's I-9 forms, all the data  that was in each form, and a time and date stamp recording of when the new Form I-9 was created and which logon created it.

If you want to have all of your I-9 forms stored in our network, but some of your employees have been with you longer than you have been using our services,  you can add the other employees' data using the  Personnel Review interface with just another click.

The beauty of having all of your employee I-9 forms in  one place is that you are able to print exception reports to see who you need to have complete a current form.   Further, with all of the I-9 forms in machine-readable form, you can transmit any mandatory summary reports,  or forms, to the Government when that is required.

If you want to create a Form I-9 for an employee, and send them an email to have them complete Section 2, our network provides a custom email function for you to use to notify them.   Then, in preparation for review  of their documents with you and both of you signing the Form I-9, they can securely use either their PC to  complete Section 2, or our network allows them to  complete their Section 2 using any Internet enabled  cell phone or PDA.   In either case this gives you the option, before you have to meet to sign the I-9 form, of checking the authenticity of what they intend to present to verify their Identity and Employment Eligibility.

Given that the Government is going to reduce the number of documents that you must accept as proof of identity and employment eligibility, we will always have the current Form I-9 version available for you.

All of our Form I-9 capabilities have been tuned to help you cope with the coming enforcement.   Employers have 152,000,000 employees in the U.S. to deal with, and that much work needs to be facilitated with high productivity tools, and secure records, as much as possible.

Remember that we are not lawyers and we do not give our clients legal advice.  While we advise you to consult your counsel, especially in matters related to unauthorized aliens, you can always call   The Integrity Center, Inc.   to discuss topics anytime at   (972) 484-6140.   Helping you with your Risk Management and HR Automation is what we do.

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