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If you haven’t heard about the new proposed legislation mandating E-Verify for all U.S. employers, there is a reason.
2009 and 2010 spawned fierce debates surrounding illegal immigration. Carrying the banner was the State of Arizona which suffered not only from headaches with employers engaged in illegal hiring of immigrants, but increased drug related murders along its’ border which pushed Arizona legislators to take extreme action that culminated in a U.S. Supreme Court decision in favor of their immigration reform and enforcement efforts.
The State of Arizona became ground zero for what has now become a growing movement by state legislatures across the country to pass reforms for enforcement of their immigration statutes. At the core of these legislative measures is mandatory use of E-Verify by all employers.
The quirkiness in using E-Verify is:
a. E-Verify is voluntary for employers who do business in States which do not mandate its usage
b. Each E-Verify transaction requires a completed paper or electronic Form I-9 which provides the legal premise for employers to attest to the verification and certification of an employees identification
c. Form I-9 proper completion must occur within 72 hours of the employees first day of work to be considered compliant. Therefore completion of the Form I-9 is a post hire process
d. Although USCIS provides a list of acceptable identification documents, employers are prohibited from requesting any particular form of identification
There are many more issues however the aforementioned provide a four corner foundation for quirkiness in using E-Verify. Simply speaking, forcing employers to complete Form I-9 for its’ employees and not mandate using the Form I-9 to query the E-Verify network to determine an employee’s work eligibility status makes no sense.
On June 14, 2011 Lamar Smith, R-Texas and new chairman of the House Judiciary Committee introduced the Legal Workforce Act HR 2164. The legislation improves the E-Verify system and makes it mandatory for all U.S. employers.
Employers need to understand the politics involved here. You have not heard much about the Legal Workforce Act HR 2164 because of the pending 2012 Presidential election year. Neither party wants to push on this legislation right now to keep peace with their respective base.
The following is a summary of HR 2164 based on a press release found at:
Some major components of H.R. 2164 include:
• Repeals I-9 System: Repeals the current paper-based I-9 system and replaces it with a completely electronic work eligibility check. They are those who have interpreted this part of the proposal as the elimination of Form I-9 altogether. The true purpose of Form I-9 is to establish a precedent and basis for legal enforcement against fraud, whether that fraud is perpetrated by the employee or the employer. This is accomplished through the employee signing section 1, and the employer or employer agent, signing section 2 of the certification attesting to the truth of the information presented on the Form I-9.
The actual propose language of H.R. 2164 pertaining to “Attestation” reads as follows,
To amend the Immigration and Nationality Act to make mandatory and permanent requirements relating to use of an electronic employment eligibility verification system, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Legal Workforce Act’.
SEC. 2. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
Section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)) is amended to read as follows:
‘(b) Employment Eligibility Verification Process-
‘(1) NEW HIRES, RECRUITMENT, AND REFERRAL- The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the following:
‘(A) ATTESTATION AFTER EXAMINATION OF DOCUMENTATION-
‘(i) ATTESTATION- During the verification period (as defined in subparagraph (F)), the person or entity shall attest, under penalty of perjury and on a form, including electronic and telephonic formats, designated or established by the Secretary by regulation not later than 6 months after the date of the enactment of the Legal Workforce Act, that it has verified that the individual is not an unauthorized alien by--
‘(I) obtaining from the individual the individual’s social security account number and recording the number on the form (if the individual claims to have been issued such a number), and, if the individual does not attest to United States citizenship under subparagraph (B), obtaining such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary of Homeland Security may specify, and recording such number on the form; “
The proposed Legal Workforce Act HR 2164 highlights yet another initiative for a green environment, but the Form I-9 is not going anywhere and employers and employees will still be bound to the terms of its legal attestation requirements.
• Gradual Phase-In: Phases-in mandatory E-Verify participation for new hires in six month increments beginning on the date of enactment. Within six months of enactment, businesses having more than 10,000 employees are required to use E-Verify.
Within 12 months after enactment, businesses having 500 to 9,999 employees are required to use E-Verify. Within 18 months after enactment, businesses having 20 to 499 employees must use E-Verify. And within 24 months after enactment, businesses having 1 to 19 employees must use E-Verify.
• Agriculture: Requires that employees performing “agricultural labor or services” are only subject to an E-Verify check within 36 months of the date of enactment. Under the bill, an individual engaged in seasonal agricultural employment is not considered a new hire if the individual starts work with an employer for whom they have previously worked.
• Federal Preemption: Preempts state laws mandating E-Verify use for employment eligibility purposes but retains the ability of states and localities to condition business licenses on the requirement that the employer use E-Verify in good faith under the federal law.
• Safe Harbor: Grants employers safe harbor from prosecution if they use the E-Verify program in good faith, and through no fault of theirs, receive an incorrect eligibility confirmation.
Repealing of the current paper-based I-9 system and replacing it with a completely electronic work eligibility check should suggest to employers the need to be connected to the internet and prepare to integrate with electronic E-Verify and Form I-9 processing solutions. You Are My Witness™ offers remote hire Form I-9 processing visit www.youaremywitness.com or .net
The stage is set. The participants and their rolls have been identified. Electronic Form I-9 processing is not the future it is NOW! Employers need to be aware and prepared.
J. Andrew Hatter
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