“E-Verify is not a replacement for the Form I-9 but rather an added layer of protection, deterring document and identity theft to a certain extent,” said Dawn Lurie, a shareholder in the Washington, D.C., office of Polsinelli and a nationally recognized expert on Form I-9 and E-Verify compliance. “In a fairly inefficient manner, employers must first complete the I-9, either on paper or electronically, and then, if enrolled in E-Verify, push or key in the information to the government’s Internet-based system.”
Golden Employment Group in Minneapolis found this out the hard way after being ordered to pay $209,600 in civil penalties for hundreds of Form I-9 violations.
The staffing company argued before the Justice Department’s Executive Office for Immigration Review that complete I-9 forms were not necessary in some cases, because it had verified those employees’ employment eligibility through E-Verify.
Golden Employment began using E-Verify in 2008. In some instances, the company had failed to complete certain sections of the Form I-9 when an employee’s eligibility for employment was confirmed by E-Verify.
As the result of an April 2013 Immigration and Customs Enforcement (ICE) audit, Judge Ellen K. Thomas found that Golden Employment committed 465 I-9 violations, of which 236 were for not preparing I-9 forms and 89 were for failing to properly complete I-9 forms. Thomas found an additional 140 violations for failing to timely present I-9 forms. She stated that using the E-Verify program does not insulate an employer from the necessity of proper I-9 completion.
“Form I-9s are mandatory in the context of federal law while E-Verify is voluntary for most businesses, outside of federal contracts and businesses subject to certain state or county regulations,” Lurie said. “In fact, a company cannot use E-Verify without first completing the Form I-9 correctly. Information entered into the E-Verify system must come from the form itself, not the identity documents or from the employee directly.”
The E-Verify Memorandum of Understanding, which employers must sign as a condition of participation in the program, states that enrolling in E-Verify does not exempt an employer from the requirements to complete, retain and produce I-9 forms for its employees.
“Think of E-Verify as an add-on to the Form I-9, an insurance product of sorts,” Lurie said. But employers shouldn’t consider it a safe harbor from worksite enforcement, she added.
“If you misuse the system, or if certain problematic patterns are noticed by ICE, you may find your company visited by auditors. I routinely advise employers not to enroll in E-Verify until we are confident that their Form I-9 processes and procedures are tight, that their staff is appropriately trained and they have conducted an internal audit under the supervision of outside counsel.”