Employers are responsible for the completion and retention of Forms I-9 for all employees, regardless of citizenship or national origin, hired for employment in the United States. An employee is any individual compensated for services or labor by an employer, whether by payment in the form of wages or other remuneration (such as goods or services such as food and lodging). On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9.
The government requires employers to resolve discrepancies between their employee records and those of the Social Security Administration or the Department of Homeland Security. Once the employer is put on notice by SSA or DHS of a discrepancy in Social Security number (a "No-Match Lette") or immigration status information, the employer has 93 days within which to re-verify the information. If the employer is unable to correct the discrepancy within 93 days, the employer has two choices: either terminate the employment and risk lawsuits by employees or continue the employment and risk severe civil and criminal sanctions from DHS.
Employers often receive "no match" letters for very legitimate reasons, such as clerical errors, or failure to register a change of name after marriage. The final rule set forth by DHS expands the definition of "constructive knowledge" to include the failure to take reasonable steps to address three situations: (1) an employee's request for the employer's sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter (as described above) from the Social Security Administration ("SSA"); and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee's employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.
Public Access File:
Employers who sponsor H-1B visa are responsible for preparing a Public Access File which should be available in a public inspection within one day from filing the LCA with DOL. The employer has to make the file available to the requesting officers within one business day of the request. The public access file should include the completed LCA (labor Condition Application), Wage Determination Data, Actual Wage Pay System Memorandum, Copy of Prevailing Wage Documentation, and Documentation regarding benefit to H-1B worker, etc.
If the employer is an H-1B dependent employer, further obligations are imposed.
By voluntarily participating in the IMAGE program, companies can reduce unauthorized employment and the use of fraudulent identity documents. As part of IMAGE, ICE and USCIS will provide education and training on proper hiring procedures, fraudulent document detection, use of the E-Verify employment eligibility verification program and anti-discrimination procedures.
Employers seeking to participate in IMAGE must agree to:
- Complete a self-assessment questionnaire;
- Enroll in E-Verify;
- Enroll in the Social Security Number Verification Service;
- Adhere to IMAGE Best Employment Practices;
- Undergo an I-9 audit conducted by ICE; and
- Review and sign an official IMAGE partnership agreement with ICE
Upon enrollment and commitment to DHS’s best hiring practices, program participants will be deemed “IMAGE Certified” - a distinction DHS believes will become an industry standard. The results of the IMAGE program and participation in IMAGE by partners in industry will serve to guide DHS in shaping future worksite enforcement policy and legislation.
IMAGE members participate in DHS’s E-Verify employment eligibility verification program, administered by USCIS. Through this program, employers can verify that newly hired employees are eligible to work in the United States. This Internet-based system is available in all 50 states and is free to employers. It provides an automated link to the Social Security Administration database and DHS immigration records.
E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. U.S. Citizenship and Immigration Services (USCIS) administers the program.
E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The program provides participating employers an automated Internet-based resource to verify the employment eligibility of newly hired employees. Employment eligibility verification queries authorization checks on all newly hired employees, including U.S. citizens and non-U.S. citizens, can be run against SSA and DHS databases. Through this process, E-Verify assists employers in maintaining a legal workforce and protects jobs for authorized U.S. workers.