- within Employment and HR topic(s)
In Part 2 of this Statutes of Liberty podcast episode on I-9 compliance, Klasko Senior Associate Natalia Gouz continues the conversation with Elise Fialkowski, Partner and Co-Chair of Klasko’s Corporate Immigration Practice Group and leader of the firm’s Worksite Enforcement Group.
Part 1 focused on the fundamentals of I-9 compliance, including document review, avoiding overdocumentation, written policies, training, and correcting errors. In this second part, Natalia and Elise take a deeper look at several issues that frequently create compliance risk for employers: reverification obligations, electronic I-9 systems, E-Verify, and how employers can position themselves to reduce liability if faced with a government audit.
Reverification Is Not Optional for Compliance
One of the most common misconceptions employers have about Form I-9 is that the process ends after onboarding. While that may be true for employees with indefinite work authorization, it is not true for employees whose employment authorization is time limited.
Reverification is required for employees with temporary work authorization. Employers must reverify the employee’s continued authorization to work before the expiration date reflected on the documentation provided by the employee. Examples may include employees with expiring Employment Authorization Documents or I-94 records tied to work-authorized visa status. Employers should track these dates carefully and ensure that reverification occurs before the employee’s current work authorization expires.
Because reverification deadlines can be missed easily, employers should have a reliable reminder system. This system should track upcoming expirations and prompt the employer to reach out to the employee well in advance.
Historically, employers often notified employees 90 or 120 days before expiration. Given current processing delays in the adjudication of applications for immigration benefits and policy changes in immigration, employers may want to consider notifying employees as early as 180 days before the expiration date. This timing is significant because many employees may be eligible to file extension requests around that point.
A proactive reminder can help employees begin the extension process early and can help employers avoid last-minute reverification issues.
Reverification is for Work Authorization, Not Identity
Another common reverification mistake is asking the employee to present the same document previously provided or asking for the full I-9 document combination again.
For reverification, the employer has already verified the employee’s identity. The employer only needs documentation showing continued work authorization. This means the employee may present either a List A document or a List C document. Employers should not insist on a specific document, such as a renewed Employment Authorization Document, because the employee may have another valid basis for employment authorization.
As with the initial I-9 process, employers must be careful to avoid discriminatory practices or document abuse.
Electronic Systems Do Not Guarantee I-9 Compliance
Many employers now use electronic I-9 systems through HR platforms, onboarding vendors, or E-Verify-integrated tools. These systems can be helpful, but they do not absolve employers of liability.
If an electronic system produces incorrect I-9s, fails to mirror the government form, lacks a compliant audit trail, or prevents timely completion, the employer may still be responsible for resulting violations. Employers should not assume that a vendor platform is compliant simply because it is widely used or bundled with an HR system.
Employers should carefully vet electronic systems for I-9 compliance and understand how the platform handles:
- Completion of Section 1 and Section 2
- Electronic signatures
- Audit trails
- Corrections
- Document uploads
- Reverification reminders
- Form updates when the government releases a new I-9
- Exporting I-9s and supporting records in response to a Notice of Inspection.
This is especially important because government inspection deadlines are short. If an employer receives a Notice of Inspection, the employer typically has only three business days to produce required I-9s and related documentation.
Electronic Audit Trails Matter
For employers using electronic I-9 systems, audit trails are particularly important. The audit trail may show who accessed the I-9, who made changes, when corrections were made, and why the correction occurred.
As discussed in the episode, recent government guidance highlights the importance of e-signature compliance and audit trail accuracy. Errors in electronic signature processes or system records may become a focus in an audit, particularly if the government treats those errors as substantive violations.
Employers should understand not only how their system stores I-9s, but also how it documents every action taken within the system.
E-Verify Is Not a Form I-9 Substitute
E-Verify is often misunderstood. While E-Verify can be an important compliance tool, it is not a replacement for Form I-9. Employers that use E-Verify must still properly complete and retain I-9s. Even if E-Verify returns an “employment authorized” result, the government may still inspect the underlying I-9s and issue fines for I-9 violations.
E-Verify and Form I-9 are separate processes that work together. Employers should ensure that staff understand both systems and do not rely on E-Verify as a complete shield against compliance risk.
The Benefits and Risks of E-Verify
There are benefits to using E-Verify. For example, participation may be required in certain contexts, including employers seeking to employ F-1 students under STEM OPT rules. E-Verify may also provide some protection when an employer has properly reviewed documents that reasonably appear genuine and related to the employee.
However, E-Verify also carries additional responsibilities and potential compliance risks. The E-Verify compliance and monitoring branch may review employer records and identify patterns in document use or employee treatment. These patterns may lead to inquiries or referrals, including to the Immigrant and Employee Rights Section.
For example, if E-Verify data suggests that an employer consistently requires U.S. citizens to present passports or lawful permanent residents to present green cards, the employer may face questions about discriminatory document practices.
Before implementing E-Verify, employers should consider conducting an internal I-9 audit, refreshing training, and reinforcing non-discrimination rules.
Audit Readiness Starts Before the Government Arrives
Audit readiness should begin well before a Notice of Inspection arrives. Employers can strengthen their position by maintaining organized records, having clear policies, training staff, using compliant systems, and conducting periodic internal audits.
If an employer receives a Notice of Inspection, timing becomes critical. The government will generally expect the employer to produce I-9s and related materials within the required timeframe unless an extension is granted in writing. It is critical to document any extensions or modified deadlines in writing.
Reducing Potential I-9 Fines
When the government proposes fines after an I-9 audit, there may be opportunities to challenge the findings or negotiate a reduction. Employers may be able to argue that the validity of challenged I-9s were valid, that documents were produced timely, or that discretionary factors support a lower penalty.
The government may consider several factors when assessing or reducing fines, including the employer’s size, good faith efforts, whether unauthorized workers were involved, the seriousness of the violations, and history of previous violations.
A strong compliance program can support a good-faith argument. Employers that maintain written I-9 policies, conduct regular training, use careful review procedures, keep organized documentation, and take steps to correct issues may be better positioned to reduce potential penalties.
Key Takeaways for Employers
Employers should consider taking the following steps to strengthen I-9 compliance and audit readiness:
- Track expiring work authorization and reverify before expiration.
- Notify employees well in advance of reverification deadlines.
- Request only valid work authorization documents, not identity documents, during reverification.
- Avoid asking for specific documents.
- Carefully vet electronic I-9 systems before relying on them.
- Confirm that electronic systems maintain compliant audit trails.
- Remember that E-Verify does not replace Form I-9.
- Conduct an internal I-9 audit before implementing E-Verify.
- Train HR and onboarding personnel on both compliance and non-discrimination rules.
- Purge I-9s that are beyond the required retention period.
- Prepare now for the possibility of a Notice of Inspection.
As Part 2 makes clear, I-9 compliance is an ongoing responsibility. Employers must not only complete I-9s correctly at the time of hire, but also monitor reverification deadlines, understand the limitations of electronic systems, and be prepared to respond quickly and strategically if audited.
If your company needs assistance reviewing its I-9 practices, evaluating an electronic I-9 system, conducting an internal audit, preparing for enrollment in E-Verify, or responding to a government inspection, please reach out to a member of Klasko’s Worksite Compliance Team or request a consultation.
If you need assistance reviewing your company’s I-9 practices, conducting an internal audit, updating compliance policies, or preparing for a government inspection, please reach out to a member of Klasko’s Worksite Compliance Team or request a consultation.
Listen to the full episode to learn how your organization can prepare for today’s evolving enforcement landscape. Subscribe to Statutes of Liberty on Apple Podcasts, Spotify, Amazon Music, and JioSaavn.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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