By Ann Cun, Counsel LawLogix Group
I-9 and E-Verify Considerations for FAR Employers- 3 Years After Mandatory Requirement Imposed
It’s been nearly three years since the Federal Acquisition Regulations (FAR) Amendments of 2009 mandating the use of E-Verify by federal contractors went into effect. Today we’ll revisit this topic to see how the FAR Amendments have impacted employers who are required to enroll in E-Verify as a result.
Complying with Federal E-Verify regulations requires employers to submit information gathered from the I-9 Form to the federal E-Verify database. For new hires, initiating a case in E-Verify is a logical sequential step. For existing employees who are assigned to a federal contract project, initiating a case in E-Verify may prove to be onerous, cumbersome and costly, particularly when there are thousands (or tens of thousands) of employees. The pure logistics of having to create new I-9 Forms and E-Verify cases for thousands of employees within a short period of time conjures up nightmares for some.
In 2012, Does It Make Sense to Complete I-9 Forms for the Entire Workforce?
Some have asked, “Wouldn’t it be easier if we completed a new I-9 Form for the entire workforce?” In fact, we have actually addressed this issue a couple of years ago here.
As time goes by, it’s easy to think that a “do-over” can resolve an organization’s I-9 issues, but be careful! Old I-9 Form errors may come back and haunt you. Instead, before embarking on an all-or-nothing approach, FAR employers should consider the following:
The Logistics of Completing New I-9 Forms
· How much time should be earmarked for each employee and HR team member to create new I-9 Forms?
· Would HR team members need to be properly trained (or re-trained) on how to properly complete new I-9 Forms?
· If so, who will be conducting the training?
· If employees are part of a bargaining unit, who will be in charge of negotiation with the bargaining unit?
When Does It Make Sense to Complete New I-9 Forms?
For large organizations (think Fortune 500 types), completing new I-9 Forms for the entire workforce makes sense in two major situations:
1. Large FAR employers with complex or multiple levels of federal contracts such that determining which employees are and which ones are not working on federal contract projects may be so time-consuming it’s simply more cost-effective to conduct a blanket re-I-9 for the entire workforce.
2. Large FAR employers whose entire workforce is indeed working on federal contract projects who would rather complete new I-9 Forms for the entire workforce instead of parsing through existing I-9 records to identify which records need to be updated for compliance.
Absent implementation of an I-9 compliance program, FAR employers should still be mindful of old I-9 records containing both technical and substantive errors. One of the common misconceptions about completing new I-9 Forms is that by doing so, the newly completed I-9 Form will remediate past errors on the previous I-9 Form. This is true if the newly completed I-9 Form was completed correctly and if the errors on the previous I-9 Form were technical (paperwork) errors that could have been remediated.
What Are the Alternatives to Having to Complete New I-9s For the Entire Workforce?
There are still alternatives from having to create new I-9 records for the entire workforce. The ultimate decision will be significantly affected by time and costs.
1. Perform an internal audit of the company’s I-9 records to determine which ones need to be remediated or updated in order for a case to be correctly initiated in E-Verify, or
2. Create new I-9 records for only new or existing employees assigned to a federal contract project.
No matter the options, FAR employers should conduct their due diligence and weigh the risks associated with each option before jumping in. Again, getting the opinion of legal counsel who has experience in the field of employment eligibility verification is a critical step towards compliance.
Ann Cun is Counsel at LawLogix Group, Inc., the leading provider of innovative electronic I-9 and E-Verify and Immigration Case Management Software. Ms. Cun is an attorney with over a decade of immigration experience (including as a paralegal) that includes securing temporary and permanent work visas for global employees, as well as conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. Ms. Cun writes regularly on the topic of employment eligibility verification for U.S. workers at www.electronici9.com. For more information about the Guardian I-9 and E-Verify Compliance Solution, visit here.