We’re continuing our series about common I-9 mistakes with a tip that focuses on record-keeping—specifically, how long employee I=9 forms should be retained. Managing employee documentation and I-9 forms is an important part of the compliance process, but many employers are confused about how long they should retain employee records and if it’s acceptable to discard records after an employee no longer works for the company.

Tip #2: Retain your I-9 records.

So how long are you required to maintain an employee’s I-9 form? The answer is: you must maintain an employee’s I-9 form either 3 years after the date of hire or one year after the date that employment is terminated—whichever is later.

It sounds simple enough, but failing to maintain records in this way can be a serious violation. According to the U.S. Citizenship and Immigration Services Handbook for Employers:

“If an employer’s action or inaction result in the alteration, loss, or erasure of electronic records, and the employer knew, or reasonably should have known, that the action or inaction could have that effect, the employers is in violation of section 274A(b)(3) of the INA (8 CFR Part 274a.2(g)(2)).”

Many employers simply opt to maintain all employee records on a permanent basis—that approach will work too, but it’s not a practical solution for everyone. Just make it a rule to follow the regulations put forward by the government in order to maintain compliance.

If you don’t want to wait for our next blog posts and would like to read all five of our helpful tips to avoid common I-9 mistakes, feel free to download our complimentary guide now!

We’re curious: Do you keep your employee records only as long as necessary, or do you retain them on a permanent basis?

In an effort to be thorough and to ensure compliance with governmental regulations, companies are sometimes overzealous. This is of special concern in the case of the Form I-9 Employment Eligibility Verification process.

The need to prove that all of the company's employees are eligible to work in the United States has caused some employers to demand more documentation from non-citizens than is required by law. This is illegal. It can even trigger an unwelcome civil rights lawsuit initiated by the Department of Justice (DOJ).

The requirements placed on companies by The Immigration Reform and Control Act (IRCA) are:

• To hire only persons authorized to work in the United States.
• Not to discriminate on the basis of citizenship status or national origin.

In addition, employers are required to "treat all employees the same during the Form I-9 Employment Eligibility Verification process, regardless of their citizenship status," by the Immigration and Nationality Act (INA).

An employer may not:

• Require more or different documents from noncitizens than from citizens.
• Ask for documentation prior to employment if the employer suspects the applicant is not a citizen or has a foreign-sounding name.
• Refuse to accept documentation with a future expiration date.
• Refuse to allow the employee to choose which of the eligible documents he will provide.
• Refuse to hire non-citizens except when the position requires citizenship by law.
• Refuse to accept any documentation allowable by law.
• Intimidate or retaliate against any employee who alleges discrimination, or who supports another employee's claim of discrimination.
• Require an employee to present different or more documentation during the re-verification process than during the original eligibility process.

There is an entire section Department of Justice's Civil Rights Division, called the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC"), devoted to enforcing the anti-discrimination provision of the INA. Usually, within seven months after the receipt of a complaint, the OSC completes its investigation.

If the OSC determines that a company has engaged in a pattern or practice of discriminatory acts by requiring additional and unnecessary documentation to verify the work eligibility of noncitizen employees as compared to documentation required/requested of U.S. citizens, it can file a lawsuit against the company in court. In addition to legal penalties, a company found guilty of these practices may be forced to pay the victim(s) various types of relief.

A company's best option is to adhere strictly to the letter of the law and not adopt the attitude that "more is better."

The United States Immigration and Customs Enforcement agency has issued a statement that they will begin the fifth surge in a series of investigations aimed at investigating potential employers of illegal immigrants. Approximately 1000 employers are being notified of intention to investigate.

"The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructures and key resources," the ICE news release stated.

"Ultimately, our focus on business related to critical infrastructure and key resources aligns with our priority as an agency to first and foremost minimize threats to national security and public safety," Ice spokesperson Gillian Christensen suggested.

"ICE's worksite enforcement strategy focuses on employers, penalizing those who knowingly violate the law and deterring others from breaking the law," Christensen added. Stating that ICE "may arrest workers we encounter," she restated that the goal was to make examples of the employers that they could pinpoint and not to arrest and deport illegals.

According to ICE, the program is not being developed in a systematic format. Decisions on which random companies will be investigated will be done on "tips," possibly from anonymous sources and similar to the manner in which drug cases are built.

Claiming the scope would be broad, the federal agency stated that the focus would be on corporations in the banking and finance industry, commercial nuclear reactors, dams, drinking water and water treatment systems, government facilities, information technology, telecommunications and transportation systems, as examples.

No definitive statement was given with respect to "I-9 audit surges" against employers who depend on transient and seasonal workers to prepare their product for market. These industries include the agriculture and construction industry.

While reaffirming that the audits are intended to foster a culture of compliance among potential employers of illegal immigrants, the agency noted that this is the fifth such audit program. In the fiscal year 2010 ICE arrested 196 employers from 2,338 audits. The 2,196 audits of the preceding 2009 fiscal year resulted in 114 employer arrests.

Penalties from convictions for hiring illegal immigrants include fines and incarceration, but can also result in expulsion from the immigrant worker program and a ban from receiving future government contracts. ICE actually implemented this prohibition on 97 businesses and 49 individuals in the 2010 operating year.

I-9compliance.com’s provides an electronic compliance solution to help you with your I-9 forms, keeping you ready to respond to any I-9 request by the government at a moment's notice. Visit I-9compliance.com and get started today.

According to a report from Workforce Management, the U.S. House of Representatives has approved a homeland security funding bill that would extend E-Verify, the government-run electronic employment verification system, for three years.

The provision to extend E-Verify for three years was included in a $42.8 billion appropriations measure the House approved that would fund the Department of Homeland Security for the next fiscal year. The bill, which is expected to be approved by the Senate, allocates $137 million to improve E-Verify’s accuracy and compliance rates and $135 million for Immigration and Customs Enforcement (ICE) to hire special agents for workplace immigration audits.

E-Verify, which checks employee information from I-9 forms against Social Security and homeland security databases, is used voluntarily by more than 148,000 employers. The Obama administration has made E-Verify the centerpiece of its efforts to increase work-site enforcement. According to the U.S. Citizenship and Immigration Services (USCIS), E-Verify confirms nearly 97 percent of employment queries within 24 hours. The homeland security agency increased the reach of E-Verify in September by implementing a regulation that would make the system mandatory for federal contractors.

A designated E-Verify service agent, I-9Compliance.com — a member of the Pre-Employ.com Family of Companies — is pre-integrated with the Department of Homeland Security's (DHS) E-Verify system and provides employers with a paperless, web-based I-9/E-Verify solution. To view a complimentary webinar titled "E-Verify & Federal Contractors: Know The Facts" currently available for on-demand viewing, visit http://www.i-9compliance.com/Webinars. To learn more about I-9Compliance.com, visit www.i-9compliance.com, email info@i-9compliance.com, or call 1-800-300-1821.

tahearn@i-9compliance.com

As reported by TacomaWeekly.com, Pierce County in Washington state is participating in E-Verify beginning October 6 in order to ensure that those who work for the county are lawfully able to do so.

Effective October 6, applicants for county jobs are screened using E-Verify, a federal Internet database that instantly confirms whether or not job applicants have documents establishing their eligibility to work in the United States, and most businesses seeking to do contract work for the county are required to use the system for their own employees. Businesses also need to confirm they are enrolled in E-Verify if they are seeking road or other county public works contracts worth more than $100,000, and those applying for any other contract worth more than $25,000 must do the same.

E-Verify allows employers to electronically compare information taken from the federal Form I-9 – the paper-based employment form used for all new hires – against nearly 450 million records in the Social Security Administration database and 80 million records in the Department of Homeland Security’s immigration database.

A designated E-Verify service agent, I-9Compliance.com — a member of the Pre-Employ.com Family of Companies — is pre-integrated with the Department of Homeland Security's (DHS) E-Verify system and provides employers with a paperless, web-based I-9/E-Verify solution. To view a complimentary webinar titled "E-Verify & Federal Contractors: Know The Facts" currently available for on-demand viewing, visit http://www.i-9compliance.com/Webinars. To learn more about I-9Compliance.com, visit www.i-9compliance.com, email info@i-9compliance.com, or call 1-800-300-1821.

tahearn@i-9compliance.com