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276,000 reasons to button up your I-9 process

Practicing happy law — i.e., keeping business clients out of trouble — is one duty of a corporate attorney. Raluca Vais-Ottosen, an immigration lawyer at DeWitt Ross & Stevens in Madison, has conducted many audits of her clients’ procedures for I-9 employment eligibility verification. Every time she does, issues arise that can get employers in trouble with the federal government. Here’s how they can avoid trouble and the hefty fines that often come with it.

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If there is one thing that business owners and executives hate more than being bored, it’s paying large fines to Uncle Sam. Since that bearded gentleman already has both hands in their pockets at payroll and tax time, it’s worth their time to consider recent changes to the federal Form I-9 and its proper storage.

Before you yawn, please note that employers began using a new Form I-9, which verifies the identity and employment authorization of individuals hired for employment in the U.S., at the beginning of 2017. (A new version became mandatory in January, with yet another one being released on July 17. Employers can still use the January version until September 17. Beginning September 18, employers can only use the July 17 version.) Both issues — storage snafus and recent changes to the form — have been tripping up employers at a time when the penalties have gone up for organizations that aren’t in compliance.

Just ask a certain Minnesota staffing agency, Alpine Staffing, which might be the best example of why the storage of Form I-9 is not a trivial matter. The firm was assessed $276,000 in penalties because it produced requested I-9s in response to an audit in installments — not by the deadline. The folks at Immigration and Customs Enforcement were not amused; in fact, they were as cold as ICE after issuing a notice of inspection requesting that company produce all of its I-9s for all employees within a week.

In this case, the installment plan was frowned upon, according to Raluca Vais-Ottosen, an immigration attorney with the Madison office of DeWitt Ross & Stevens. “They did produce a good chunk of the I-9s, but then after the week passed, they discovered more I-9s they had not produced, so they went ahead and produced those right away,” she recounts. “Then, about a month later, they discovered even more I-9s that somebody else had found and they produced those … and then they had to pay $276,000 in fines.

“More than half of that amount was for producing those I-9s late because they did not have them centralized in the first place.”

Therefore, her first tip on avoiding the pitfalls of the I-9 verification pertains to storing all I-9s together in a centralized file. Federal rules and regulations don’t specify that employers are required keep the I-9 in an employee’s personnel file or whether they have to keep them centralized, so they can do either/or. As a practical matter, she says it’s much better to store all the I-9s together in one central file.

“The law does specify that ICE only has to give you three days to produce the documents after they issue that notice of inspection, so this is a matter of practicality for an employer,” she adds.

Beyond central storage

Vais-Ottosen has noticed employers getting tripped up on I-9 verification and in some cases E-Verify, a web-based system to confirm employment eligibility by comparing data on Form I-9 with information from the U.S. Department of Homeland Security. The biggest challenge she sees is that the new form is one page longer online but the accompanying set of instructions is twice as long. “The longer these forms and instructions get, the less likely it is that employers will actually read them,” she states. “It’s definitely a more cumbersome set of instructions.”

How cumbersome? Instructions for the new form went from seven pages to 15 pages. While annoying, that doesn’t sound like a lot; however, most employers didn’t read the old form or the seven-page set of instructions to begin with. The government tried to add more detail and clarity to the instructions, but Vais-Ottosen is not convinced the feds actually succeeded in doing that.

“They made it harder to follow for a lot of people,” she states. “Also, there is an entire page of definitions that should really be self-explanatory. I don’t really think we need an almost three-line explanation about what the first name or middle initial means. There is literally a 2-1/2-line explanation for what a middle initial means. This just adds to an employer’s perception of, ‘I don’t need to read this. Why would I waste time reading instructions about a middle initial?’

“If you keep going through it, you do eventually get to the meat of the I-9 regulations.”


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