E-Verify and USCIS Form I-9 Compliance

All U. S. employers must complete USCIS Form I-9 to confirm that newly hired employees are authorized to work in the United States. Employers attest that they have verified a new employee’s authorization to work in the United States after examining the employee’s identity and employment authorization documents within the first three days of employment.

Since 1986, the United States’ employment eligibility verification laws and enforcement efforts have become increasingly complex. Today, many federal and state laws are designed to increase employer participation in E-Verify, the federal government’s electronic employment eligibility verification program. All federal contractors and subcontractors must participate in E-Verify. Several states also require employers to use E-Verify.

In response to the Covid pandemic, the government permitted some flexibility in completing I-9s. This flexibility expired on August 30, 2023. To increase participation in E-Verify, the government permits employers who participate in E-Verify to review and verify an employee’s documents remotely. 

On its face, the I-9/E-Verify process appears easy:  Employers are liable for “knowingly” hiring, recruiting, or referring for a fee “unauthorized aliens.”  Most employers understand this rule, but there are many traps that could ensnare even careful companies. Failure to complete the I-9 properly or failure to retain the form for the required period can result in fines for each record keeping violation. For large companies, simple record keeping violations can result in huge fines. The practice of asking an employee to provide specific documents to quickly complete Form I-9 can expose an employer to fines for immigration-related employment discrimination. 

U.S. employers will have to be more vigilant in their compliance efforts. We expect U.S. Immigration and Customs Enforcement (ICE) to increase its civil enforcement activities nationwide. Increasingly, ICE, the Department of Justice, the Department of Labor, and other agencies are collaborating to investigate and bring coordinated enforcement actions against employers for immigration violations, labor law violations, document fraud, unfair employment hiring practices, discrimination, and other offenses.  

We can help employers understand their responsibilities, navigate potential obstacles, and achieve compliance with their immigration-related obligations. We can conduct sample I-9 audits for corporate human resources departments and can lead training sessions on I-9 and E-Verify to identify “best practices” to minimize exposure and achieve proper compliance.

While we strongly prefer taking stock of a client’s practices and proposing corrective measures as a preventative measure, this may not always be possible. We also provide skilled representation for employers in the audit, Notice of Findings, and hearing phases of an investigation.