I-9, E-Verify, Audits, and Training

       Under U.S. law, employers must complete I-9 Work Verification forms for all employees—citizens and noncitizens alike.  The I-9 process has been the subject of recent controversy, as the government has been cracking down on worksite compliance by targeting employers.  The number of I-9 audits conducted by Immigration and Customs Enforcement goes up each year, and so making sure your company is compliant is more important now than it has ever been.

       The Form I-9 requires information of the foreign employee, a certification by the employer that it has verified the employee’s work authorization documents, and a reverification of work authorization following expiration of those documents.  However, although the form itself appears relatively uncomplicated, failure to complete and maintain I-9s properly can result in large fines and civil liability, as well as criminal fines and imprisonment.  Employers have been hit with hundreds of thousands of dollars in fines for mere paperwork errors and sued for discrimination resulting from improper I-9 practices.  Routine I-9 audits are critical to ensuring good-faith compliance with all applicable immigration laws.

       E-Verify is an internet-based system that allows employers to verify a new hire’s work authorization by checking the employee’s information against Department of Homeland Security (“DHS”) and Social Security Administration (“SSA”) databases.   At the Federal level, participation in E-Verify is mandatory for federal government agencies and a few others, including businesses having contracts with federal agencies.  Some states have also enacted laws mandating the use of E-Verify.  For the rest of U.S. employers, however, E-Verify is voluntary.  

       Another program closely related to E-Verify is the ICE Mutual Agreement between Government and Employers (IMAGE) program.  IMAGE is a voluntary program through which employers sign an agreement with the government promising to engage in certain practices to prevent unlawful employment.  To become certified in IMAGE, employers must, among other requirements, enroll in E-Verify, have a written hiring and employment eligibility verification policy, conduct an internal Form I-9 audit at least once a year, and submit to an I-9 inspection.

       As an employer, there are many different factors that should go into your decision to participate in E-Verify or IMAGE.  For example, many employers have to consider the costs and burdens associated with verifying employees.  Additionally, it is important to have an immigration attorney evaluate your I-9 forms and practices prior to submitting to government inspection.

       Our attorneys are experienced in issues relating to E-Verify, I-9, and overall worksite compliance.  We are experienced in conducting I-9 self-audits to correct any mistakes and rectify any unlawful practices. We can also provide training and help you put a proper compliance system in place so as to avoid fines and lawsuits, or provide legal counsel if you are in the midst of an I-9 audit or civil lawsuit. We are also available to help you evaluate your decision whether to enroll in E-Verify.  For more information, please contact our office.

William J. Flynn, III is a member of the Firm's Board of Directors and leader of the Immigration Practice Group. His practice includes a large immigration practice representing foreign nationals and U.S. corporations that employ foreign nationals. He represents clients before the U.S. Department of Homeland Security, U.S. Department of Labor and U.S. Department of State. Mr. Flynn is Board Certified by The Florida Bar in Immigration and Nationality Law. Mr. Flynn is AV peer review rated by Martindale-Hubbell. He received his B.A. from Georgetown University and his J.D. and M.B.A. degrees from the State University of New York.