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Avoiding Discrimination in I-9 Verification: A $100K Mistake Serves as a Stark Warning for Employers
April 4, 2024
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The trend of the DOJ actively seeking to make employers responsible for discriminatory actions in the Form I-9 verification process is increasingly being emphasized. In this article, we’ll review a recent case that illustrates the importance of adhering to Form I-9 document verification requirements, including best practices, resources, and insights.
DOJ Settlement Highlights Importance of Compliance with Form I-9 Verification
Following a Department of Justice (DOJ) investigation and a recent settlement, a security services company has been ordered to pay over $100,000 for discrimination during the Form I-9 process. According to a DOJ announcement, Securitas Security Services USA Inc. (Securitas) violated the Immigration and Nationality Act (INA) by requiring lawful permanent residents to present specific work authorization documents for Form I-9 verification. The recent announcement also states that Securitas made similar requests of other employees who were not U.S. citizens.
The anti-discrimination provision of the INA is enforced by the Immigrant and Employee Rights Section (IER) of the DOJ’s Civil Rights Division. It includes a wide range of discriminatory practices, such as hiring, firing, recruitment, or referral for a fee, and unfair documentary practices - as noted in the Securitas case.
Employers must be sure to avoid requesting specific identification and employment authorization documents for Form I-9 verification. The INA's anti-discrimination provision prohibits employers from specifying or demanding particular documents for employment eligibility verification due to a worker's citizenship status, immigration status, or national origin. This provision ensures that all workers, including non-U.S. citizens who are legally eligible to work, are allowed to present any acceptable documentation of their choice.
Assistant Attorney General Kristen Clarke emphasized that federal law allows workers to choose which valid, legally acceptable documentation they present to prove their identity and permission to work, underscoring the principle of non-discrimination regardless of citizenship, immigration status, or national origin.
Form I-9 Verification: Know Your Documents
Employers should refer to “The Lists of Acceptable Documents” that accompanies the Form I-9 and should accept any document from List A, or a suitable combination of documents from List B and C to verify identity and employment authorization, as long as the document(s) seem authentic and pertain to the individual presenting them.
List A Documents - Identification and Employment Authorization
Documents listed under List A confirm an individual’s identity and authorization to work legally in the U.S. Such documents enable employers to validate both an employee's identity and their legal status to work without needing further documentation. Below are some examples of List A documents:
When List A documents are presented as a combination of multiple documents, they are collectively considered a single List A document for Form I-9 purposes. An example of this is the combination of a foreign passport and a Form I-94 or Form I-94A, which must carry the same name as the passport and an endorsement of the holder’s nonimmigrant status that permits employment with a particular employer based on their status. Once an acceptable List A document is provided, no additional documentation should be requested from the employee.
List B and List C Documents
List B documents, which establish identity only, require employees to also present a List C document for employment eligibility verification. Examples of List B documents include driver’s licenses, I.D. cards, and, for individuals under 18, school I.D.s or hospital records. Conversely, List C documents verify employment eligibility alone, necessitating an accompanying List B document for identity verification. Examples of List C documents include Social Security Cards, the F-545 Certification of Birth Abroad issued by the U.S. Department of State, and the Form I-571 Refugee Travel Document.
Updated List C Guidance
USCIS recently updated guidance for the Lists of Acceptable Documents with a focus on List C #7 documents. Sample images of these documents and detailed information about acceptable documentation can be found on I-9 Central and in the M-274, Handbook for Employers. Refer to the following sections:
Document Receipts
Receipts may be accepted for certain documents that have been lost, stolen, or damaged for a temporary period. More information about Form I-9 document receipts can be found in the M-274, Section 4.4 Acceptable Receipts.
A Growing Trend in DOJ Investigations
In recent years, there has been a noticeable shift in the focus of Form I-9 compliance efforts. While Immigration and Customs Enforcement (ICE) continues to perform Form I-9 worksite audits, there is a growing emphasis on cases related to Form I-9 discrimination, primarily handled by the Department of Justice. Although ICE remains in charge of I-9 audits, employers need to stay informed about joint investigations by different agencies. Notably, there has been a significant rise in DOJ settlements concerning unfair and discriminatory practices during the I-9 document review process, and this trend appears likely to continue.
Businesses in the U.S. should equally prioritize compliance with I-9 document management practices and administrative Form I-9 procedures. Recent I-9 penalty adjustments have led to higher fines for non-compliance. Employers may face fines ranging from $281 to $2,789 for mistakes made on Form I-9. For engaging in unfair document practices, penalties vary between $230 and $2,304. A first offense of unfair immigration-related employment practices, the fines can range from $575 to $4,610.
Tools and Resources to Help You Comply with I-9 Verification Requirements
Tackling the intricacies of Form I-9 compliance requires the proper tools, resources, education, and practices. The advancement of technology provides a valuable resource for employers looking to simplify their I-9 verification processes and firmly commit to non-discriminatory principles. Let’s explore how technology can serve as a supportive partner in this effort.
An electronic I-9 solution simplifies complex requirements, streamlines procedures, and reduces the risk of discrimination. Advanced Form I-9 software goes beyond data validation to offer comprehensive support throughout the Form I-9 process, ensuring the form is managed with accuracy and adherence to regulations. This should encompass compliance features that make the I-9 document review process straightforward and effective, including a workflow for compliant document verification, detailed guidance for I-9 documents with examples, and secure options for uploading and storing document images. Furthermore, your electronic I-9 system should adhere to all standards prescribed by USCIS and the DOJ, including specific requirements for I-9 applications.
Steer Clear of Discrimination: Key Best Practices
Avoiding discrimination during the Form I-9 and E-Verify process is crucial for maintaining compliance with federal laws and fostering an inclusive workplace. Here are the best practices to ensure fairness and adherence to regulations:
1. Train HR and Hiring Staff
Ensure that all personnel involved in the hiring and employment eligibility process are thoroughly trained on Form I-9 and E-Verify procedures. Training should emphasize the importance of following the guidelines without discrimination. Continued education and education can help to make sure your organization is on top of changing employment laws.
Many electronic I-9 solution vendors like GryphonHR also include training modules and resources to educate employers and HR personnel on the legal requirements of Form I-9 and E-Verify. This ongoing education is crucial for maintaining compliance and fostering a culture of inclusivity and respect for workers' rights.
Get started with these complimentary resources for valuable insights:
- Download our complimentary e-book: Preventing Discrimination During the I-9 Process.
- Discover key strategies for avoiding discrimination with Form I-9 and E-Verify by reviewing this DOJ fact sheet.
2. Standardize the Process
Develop and implement a standardized process for all employees, regardless of their national origin, citizenship, or immigration status. This uniform approach helps prevent discriminatory practices.
3. Present the Lists of Acceptable Documents Equally
When informing employees about the documents they can present for verification, ensure that all options from the Lists of Acceptable Documents are presented equally. Employees should be allowed to choose which documents they wish to present from the lists.
4. Avoid Requesting Specific Documents
Do not request more or specific documents than are required for the Form I-9 process. Employees have the right to choose which acceptable document(s) they want to provide.
5. Refrain from Reverification of Permanent Residents
Do not reverify the employment eligibility of lawful permanent residents once they have presented a Form I-551, Permanent Resident Card, for the initial verification. Permanent residency status does not expire for employment verification purposes, even if the card itself has an expiration date.
6. Use E-Verify Consistently
If your organization participates in E-Verify, use it for all new hires in locations where it is required or has been elected to be used. Applying E-Verify only to individuals of certain national origins or citizenship statuses can be discriminatory.
7. Respond Appropriately to Tentative Nonconfirmations (TNCs)
When an employee receives a TNC from E-Verify, provide them with clear instructions on how to contest the TNC and the timeframe for doing so. Ensure they understand their rights and do not take adverse action against them while the TNC is being contested.
8. Keep Detailed Records
Maintain thorough documentation of the Form I-9 and E-Verify process for each employee. This includes records of any actions taken in response to TNCs and the rationale behind them.
9. Conduct Internal Audits
Regularly review your organization's Form I-9 and E-Verify processes to identify and correct any practices that could be construed as discriminatory. This can help preempt any issues before they escalate into legal problems.
10. Leverage Technology
The advancement of technology provides a valuable resource for employers looking to simplify their I-9 verification processes and firmly commit to non-discriminatory principles. Let’s explore how technology can serve as a supportive partner in this effort.
An electronic I-9 solution simplifies complex requirements, streamlines procedures, and reduces the risk of discrimination. Advanced Form I-9 software goes beyond data validation to offer comprehensive support throughout the Form I-9 process, ensuring the form is managed with accuracy and adherence to regulations. This should encompass compliance features that make the I-9 document review process straightforward and effective, including a workflow for compliant document verification, detailed guidance for I-9 documents with examples, and secure options for uploading and storing document images. Furthermore, your electronic I-9 system should adhere to all standards prescribed by USCIS and the DOJ, including specific requirements for I-9 applications.
Check out our free “Ultimate Guide: Electronic I-9 Evaluation and Interactive Checklist” to help you compare electronic I-9 compliance solutions, or get in touch with our I-9 experts to uncover the capabilities of the GryphonHR Form I-9 and E-Verify platform.
In Conclusion: Emphasizing Vigilance with I-9 Compliance and Upholding Fair HR Practices
The Securitas settlement serves as a crucial lesson for employers nationwide: the importance of complying with the INA's anti-discrimination provisions cannot be overstated. By understanding the permissible documents for Form I-9 verification and leveraging technology to ensure compliance, businesses can safeguard against discrimination and hefty fines. Stay tuned to GryphonHR for more Form I-9 and E-Verify information and
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In today’s complex regulatory environment, employers must prioritize compliance with various labor and immigration laws, especially when it comes to verifying the identity and work eligibility of employees. The Form I-9, required by U.S. Citizenship and Immigration Services (USCIS), is a crucial document for ensuring that employers are hiring individuals who are authorized to work in the United States. Regular I-9 audits are essential to avoid costly penalties, ensure workforce compliance, and streamline the hiring process. 1. Understand the I-9 Requirements Before embarking on an I-9 audit, it’s important to have a thorough understanding of the requirements associated with the form. The Form I-9 must be completed for every employee hired after November 6, 1986, and must be retained for at least three years after the date of hire, or for one year after the employee’s employment is terminated—whichever is later. The form is divided into three sections: Section 1 : The employee’s personal information, including citizenship status. Section 2 : The employer’s verification of the employee’s documents to confirm work eligibility. Supplement B (formerly Section 3) : Used for reverification or rehires. The forms must be accurately completed, and the documentation provided by employees should be examined and verified. Incomplete or incorrect forms can lead to penalties. 2. Prepare for the Audit An I-9 audit begins with preparation. To ensure you conduct a smooth and effective audit, follow these steps: a. Review Existing Policies and Procedures Start by evaluating your current I-9 procedures. Ensure that your HR team or hiring managers are consistently following proper protocol for completing the forms. A clear, documented process for filling out I-9s and managing records is crucial. If you rely on paper forms, consider transitioning to an electronic I-9 solution, which streamlines data collection, reduces human error, and provides a centralized location for managing I-9 forms. b. Gather All I-9 Forms and Supporting Documents For the audit, you’ll need to collect all current and past employees’ I-9 forms. If you’re using a digital system, this should be a straightforward process. Otherwise, gather all the physical files, which may include additional paperwork like copies of supporting documents for each employee. Organize the documents by hire date or employee group to ensure a structured audit process. Be sure to include any I-9 forms for employees who have left your organization, as their forms must be retained for the legally required time. c. Identify a Team or Partner for the Audit Depending on the size of your organization, you may need a dedicated team to handle the I-9 audit. For smaller organizations, HR personnel or a compliance officer might suffice. For larger businesses, consider hiring an external consultant or law firm specializing in immigration compliance. Ensure that the team understands the regulations around the I-9 process and is equipped with tools, like checklists or I-9 software, to guide them through the audit. 3. Conducting the I-9 Audit Once you’ve gathered the necessary materials and formed your audit team, it’s time to dive into the audit process. The audit involves reviewing all I-9 forms and identifying discrepancies, errors, or missing information. a. Check for Completeness and Accuracy Examine each I-9 form to ensure the following: Section 1 : Has the employee filled out the section completely and signed it? Ensure that the employee’s name, date of birth, and other identifying information are accurate. For forms dated after March 2013, but before August, 2023, make sure N/A values are populated for required fields, where applicable. Section 2: Has the employer reviewed the employee’s documents, listed the correct document numbers, and signed the form on time? The employer’s signature is required within three business days of hire. For forms dated after March 2013, but before August, 2023, make sure N/A values are populated for required fields, where applicable. Supplement B (formerly Section 3) : If the employee has been rehired or the work authorization has expired, has the form been properly updated and signed? Common mistakes include missing or incorrect document numbers, incorrect document expiration dates, failure to reverify work authorization, and missing signatures. b. Verify Document Authenticity It’s essential to ensure that the documents submitted by employees for identity and work authorization are legitimate and match the details on the I-9 form. Be cautious of any discrepancies in the documents or signs that the documents may be fraudulent. Employers are not required to be experts in document verification, but they should be familiar with what constitutes acceptable documents and ensure they match the categories listed in the I-9 form. The USCIS provides a Handbook for Employers to guide document verification. c. Address Errors and Non-Compliance When you identify errors or omissions, document each instance and correct the issue. Some errors can be easily corrected by updating the form, while others might require more complex adjustments. If the error is severe, such as hiring someone who is not authorized to work, consult legal counsel immediately. If an employee is no longer with the company and the form is incomplete, it may be necessary to create a new, corrected I-9 if the record-keeping requirement is still in effect. However, if the employee has already left, and the form is beyond the retention period, the document may be discarded. 4. Reporting and Correcting Non-Compliance Once the audit is complete, compile a report detailing the findings, including any non-compliance issues or patterns you’ve observed. Share this report with relevant stakeholders, such as HR leaders or legal counsel. For any discrepancies or errors found during the audit, it’s important to take corrective actions, such as: Completing missing or incomplete forms. Revising incorrect information. Taking steps to ensure that your organization is in compliance with I-9 regulations going forward. If serious violations are discovered (e.g., intentional misrepresentation or hiring unauthorized workers), you may need to consider voluntary self-disclosure to authorities, or take steps to rectify the situation to mitigate potential fines or penalties. 5. Improving I-9 Compliance Going Forward An audit can reveal weaknesses in your internal processes. Use the findings from the audit to improve future I-9 compliance. Consider implementing the following: Training : Regularly train HR personnel, hiring managers, and any other relevant staff on I-9 compliance to reduce errors. Technology : Invest in electronic I-9 systems that offer real-time error checking, automated reminders, and audit trails. These systems can greatly reduce manual errors and improve compliance rates. Standard Operating Procedures (SOPs) : Update your I-9 procedures, create checklists, and implement standardized workflows to ensure consistency across your hiring process. Conducting a thorough I-9 audit is essential for maintaining compliance with federal immigration laws. By preparing properly, checking for errors, and taking corrective action when necessary, you can minimize the risk of penalties and ensure that your hiring processes are as efficient and compliant as possible. Regular audits, coupled with proper training and updated technology, will help you maintain long-term compliance and avoid costly mistakes.
With hiring processes more complex than ever, E-Verify offers HR teams a streamlined, efficient way to confirm the work eligibility of new hires. However, navigating the E-Verify system can be overwhelming for HR professionals, especially as legal compliance around employment eligibility intensifies. Fortunately, technological solutions, such as GryphonHR’s platform, make E-Verify faster, more secure, and easier to integrate with existing systems. This guide walks you through the E-Verify process step-by-step, offering insights on how HR technology simplifies each stage for a seamless experience. Step 1: Registering with E-Verify Process Overview To start using E-Verify, your organization must first enroll in the system. Registration is typically straightforward but involves a few important steps to ensure compliance and user security. Steps to Register: Visit the E-Verify Website : Go to the official E-Verify website (www.e-verify.gov) and select the option to "Enroll." Read and Accept the Terms : You will need to review and agree to the program rules, and establish an Enrollment Point of Contact. This person is responsible for managing the E-Verify enrollment process for your company. Enter Company Information : Input basic company details, such as business address, Employer Identification Number (EIN), and industry type. Create User Accounts : Identify which employees will have access to E-Verify. Each will need a secure account with unique login credentials. How HR Technology helps: HR technology solutions can simplify registration by securely storing and managing information required for enrollment, reducing the time spent on administrative tasks. Many HR platforms also integrate directly with E-Verify, allowing for easier user access and management. Step 2: Gathering Necessary Employee Documentation Process Overview To complete an E-Verify check, employees need to provide documents that confirm both identity and eligibility to work in the U.S. Typically, this step involves I-9 Form documentation, such as a passport or a combination of documents (e.g., driver’s license and Social Security card). Note that a Social Security Number is required to create a case in E-Verify. Steps for Documentation Gathering: Complete Form I-9 : Collect the employee's I-9 form and ensure all information is accurate. Verify Acceptable Documents : Cross-check that the documents provided are valid and current. Retain Copies (if applicable) : Although not required by E-Verify, retaining copies of I-9 documents may help with internal recordkeeping. How HR Technology Helps: HR tech tools streamline this stage by incorporating automatic prompts to verify which documents are acceptable, automatically filling out fields, and securely storing these documents to prevent loss and unauthorized access. Step 3: Initiating the E-Verify Process for a New Hire Process Overview Once documentation is ready, you can enter the information into E-Verify to confirm work eligibility. This step involves several sub-steps and should be completed within three days of the employee’s start date. Steps to Initiate E-Verify: Log in to E-Verify : Access your account through a secure connection. Select “New Case” : Start a new case for each employee. Enter Employee Details : Input information from the I-9 form, including the employee’s name, Social Security number, and document numbers. Review and Confirm : Double-check the accuracy of all entries and submit the case for verification. How HR Technology Helps: Platforms that integrate with E-Verify allow HR teams to initiate and complete E-Verify cases without leaving their existing HR system. This integration minimizes data entry errors, reduces manual input time, and allows for real-time tracking. Step 4: Reviewing E-Verify Results Process Overview After submitting a case, E-Verify will typically respond within seconds. There are three potential responses: Employment Authorized : The employee is authorized to work in the U.S. Tentative Nonconfirmation (TNC) : There is an issue with the information provided. HR must notify the employee, who can contest the TNC. Case in Continuance : Additional verification is required. Steps for Reviewing Results: Check Case Status : Log in to E-Verify to view the case results. Follow Up as Necessary : If there is a TNC, notify the employee within the E-Verify timeline and provide guidance for contesting if they wish. Close the Case : Once resolved, close the case in E-Verify. How HR Technology Helps: HR tech systems can set reminders for case follow-ups, and many solutions offer automated notification systems that alert employees to TNCs directly, simplifying the process for both HR and employees. Additionally, systems often include dashboards that make tracking case statuses easier. Step 5: Managing and Auditing E-Verify Records Process Overview Maintaining compliance with E-Verify involves ongoing management and periodic audits. This includes ensuring that all cases are closed, TNCs are resolved, and records are retained as per legal requirements. Steps for Managing Records: Retain I-9 and E-Verify Records : Store all relevant records in a secure location, either physically or digitally. Conduct Regular Audits : Periodically review E-Verify compliance and documentation practices. Close Out Records for Former Employees : Manage inactive employee records per the organization’s policy and E-Verify retention guidelines. How HR Technology Helps: HR tech platforms offer secure storage solutions that automatically organize E-Verify and I-9 records, making audits more efficient. Many systems provide reporting tools to generate compliance reports, track verification timelines, and keep HR teams ahead of regulatory requirements. Navigating the E-Verify process can be complex, but HR tech significantly simplifies it by automating and securing each step, from registration to case management and auditing. By integrating E-Verify into your HR systems, you not only ensure compliance but also create a smoother onboarding experience for employees and a more efficient workflow for your HR team. Whether you’re onboarding a few hires or managing a large team, leveraging HR tech makes E-Verify a fast, reliable process for employment eligibility verification.
Why E-Verify use should be a priority for employers who value workplace integrity, want to bring ease and efficiency to the hiring process, and reduce their legal risks.
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