Best Practices for Advising on Form I-9 Compliance from Lookout Services

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The following article, by Elaine Morley, was published in The Lookout Monitor on Sept. 23, 2007.

In the current environment, with enforcement ramped up against employers, companies are more and more frequently turning to professionals, looking for advice on how to avoid fines, sanctions and even jail time

    Does a lawyer have a duty to discover innovative ways to assist their clients with I-9 compliance issues? If so, that decision might involve recommending the assistance of technology or 3rd party services. For example, labor and employment lawyers recommend that employers perform background checks on their employees, however, deciding which screening firm to hire does not usually involve the lawyer.

This raises the question as to what extent a lawyer should be involved in the choice of third party employment regulators. Perhaps the legal duty stops short of actually interviewing background screening companies, but certainly telling employers not to perform the checks would be a failure in duty.

Labor/Employment and Immigration lawyers train employers in Form I-9 compliance and E-Verify procedures. Lawyers frequently conduct training sessions or legal seminars and perform audits on I-9 forms.

In recent years, lawyers and a few former government auditors have created web-based compliance tools which make it practically impossible for employers to create I-9s that contain errors. These systems guide employers through the employment eligibility verification process with "inside the box" and real-time legal advice and training. The benefits of a failsafe I-9 tool are enormous. Using alerts, tracking logic and error rules, and the extensive reporting features of these systems, it becomes easy for attorneys to oversee their clients' forms.

The I-9 form presents challenges for employers. The form contains about 29 acceptable verification documents. In fact, given that receipts for documents are also acceptable in some cases, the number of acceptable documents is even higher. This alone presents challenges because one needs extensive document training to correctly fill out the form. The employer is frequently at a loss as to which documents to accept and how to enter them onto the I-9 form.

Sometimes documents presented to the employer are fraudulent. The employer's duty is simply to examine the documents to see if they "appear genuine." But often the distinction between what "appears genuine" and what does not is difficult to make.

Employers face possible civil and criminal sanctions from Immigration and Customs Enforcement (ICE) including "knowingly hiring illegal workers" or even "reckless disregard" for the circumstances. "In the current environment, with enforcement ramped up against employers, companies are more and more frequently turning to professionals, looking for advice on how to avoid fines, sanctions and even jail time," said Don Owens, owner of Prime Information Services, a Houston based business.

In cases where employers may be charged, it comes down to whether the employer should have known the documents were fraudulent, or how reasonably the employer has acted in examining the documents. With technology, copies of documents can be scanned and attached to I-9 forms and viewed online by employer representatives or their attorneys. This enables the attorney to watch for a "pattern and practice" of conduct which may flag serious violations of law.

Some of the many benefits to a digital I-9 form include:

1) Errors and omissions on the I-9 form are virtually eliminated.

2) The need for ongoing audits is eliminated.

3) Built-in tutorial facilitates "learning while doing."

Examples of digital software compliance features:

1) Automatic e-mails repeatedly notifying staff of required actions.

2) Tracking Form I-9 retention requirements to eliminate risks over time.

3) Listing of errors that prevent completion of the Form I-9.

Generally, Employment Eligibility Verification software is linked to The Department of Treasury OFAC list of aliens "blocked" from U.S. employment, the SSNVS program offered by SSA and The Department of Homeland Security's E-Verify Program (formerly Basic Pilot).

I find that a great deal of denial exists in the workplace about I-9 compliance. Frequently, employers have boxes piled up in storage rooms, all with numerous violations on each page. They don't realize they are struggling with compliance--there may be thousands of dollars in liability lurking inside those boxes. It would behoove lawyers to advise their clients about the possibly fines for non-compliance, including possible jail time, then propose to tackle the task of auditing those I-9 forms.

The greater the likelihood for errors, the greater duty there is to advise the client to quickly embrace technology (large companies have a greater compliance risk). Lawyers should help their clients to shop for compliance technology and play an active role in overseeing compliance. This very well may become the "standard of practice" for lawyers advising in these areas.

Elaine Morley is CEO and Senior Immigration Attorney for Lookout Services, Inc. She is also a managing partner of Morley & Morley, P.C. Ms. Morley has been practicing immigration law in Houston, TX, for the past 14 years.

KEYWORDS: compliance, Form I-9, labor/employment lawyers, immigration lawyers, employers, ICE enforcement, employment eligibility, E-Verify, SSNVS, I-9 audits

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