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June 26th, 2014 | Sterling

E-Verify Is Not Enough: Complying With Form I-9

Complying With Form I-9 | SterlingBackcheck

The I-9 Employment Eligibility Verification Form may seem like a simple document that can be incorporated into a hiring package, but many employers have learned expensive lessons about I-9 compliance. The purpose of Form I-9 is to verify that employees are legally authorized to work in the United States, which in the grand scheme of things, helps maintain fair wages and protects American jobs. U.S. Immigrations and Customs Enforcement (ICE) is responsible for investigating and auditing employers to ensure that the forms are completed, accurate, and stored according to regulations. ICE also has the authority to issue penalties for non-compliant employers.

On March 26, 2014, Administrative Law Judge (ALJ) Ellen Thomas ruled that Desert Canyon Golf Club was in violation of Section 274A of the Immigration and Nationality Act, despite their use of the E-Verify program. The golf club learned this painful lesson when they were audited by ICE. The Scottsdale, Arizona based employer produced 157 I-9 forms for both active and terminated employees and were found liable for 129 violations. During the investigation, several substantive errors were documented including:

  • Section 1 was not completed properly on 11 forms
  • Section 2 was not signed on 107 forms
  • Section 2 was completely blank on 93 forms

The golf club claimed that they did not violate any laws because they used E-Verify. They further contended that their use of E-Verify satisfied the verification requirements and should therefore absolve them from having to complete Section 2 of the I-9 forms. In response to the employer’s defense, the attorneys for ICE referenced the E-Verify Memorandum of Understanding, which must be agreed to and signed by employers in order to access the E-Verify system. The Memorandum of Understanding states in Article II, C.6.:

The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.

Ultimately, the ALJ agreed with ICE and ruled that using E-Verify did not provide Desert Canyon Golf Club with unconditional protection from fines and that they were still responsible for fully completing I-9 forms for each new employee. Based on the number of violations, the expected penalty is estimated at more than $105,000.

Like many employers who are fined for non-compliance, Desert Canyon did not deliberately violate any rules or regulations. Their actions did not arise from deceitful or fraudulent business practices, but rather they made a very costly error when they established their hiring process. An oversight or mistake of this nature is a preventable expense and employers should educate themselves on the relevant rules and regulations that govern their business, including I-9 compliance.

As evidenced by the ruling against Desert Canyon Golf Club, using E-Verify alone does not make you I-9 compliant. As an employer, you are still required to ensure that Form I-9 is completed accurately and within a reasonable amount of time for each new employee.

SterlingBackcheck’s new comprehensive I-9 Management Solution offers an effective way to manage the entire lifecycle of your I-9 process – from form intake to validation, audit, remediation, data migration, storage and includes extensive remote hire support. Find out more here.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.