Mr. Wildes

Hospitality Law

I-9 Compliance Steps to Keep Your Employees Properly Documented

By Michael Wildes, Partner , Wildes & Weinberg

Verifying employment eligibility is a complicated task for all businesses but it poses particular difficulties for the hotel industry. As a high-volume and often seasonally driven business with very high turnover, juggling employment eligibility verification forms (also known as Form I-9) can be a deceptively tall order. Despite the challenges, taking the time to familiarize oneself with Form I-9 compliance is a worthwhile investment in order to avoid weighty fines or possible criminal penalties.

Every employee hired after November 6, 1986 should have an I-9 form on record demonstrating that your company performed a good faith effort to verify that person’s employment eligibility. The seasonal nature of the hotel industry, however, often demands that employees be hired, let go and sometimes rehired as the volume of business requires. When an employee is rehired, one must once again undertake the responsibility of verifying that person’s eligibility to work in the United States. Depending upon the given circumstances, a rehire may be re-verified on either Section 3 of his or her original I-9 or on a new form entirely.

Since taking up the reins in January 2009, the Obama administration has switched its focus from Bush-era worksite raids to an increased emphasis on employer hiring policies in the fight to curb illegal immigration. The Immigration and Customs Enforcement agency (ICE) has been auditing the I-9 forms of companies suspected of engaging in illegal hiring practices. Possible repercussions for improperly handled or maintained I-9 forms may range from civil penalties of $110 to $1,100 per violation, to criminal penalties of up to $3,000 and/or 6 months imprisonment per employee for engaging in a pattern of knowingly hiring unauthorized aliens.

Though the I-9 form itself comprises just one page, filling it out correctly can be a surprisingly difficult task, as evidenced by the nearly sixty-page booklet that accompanies it. The M-274 Handbook for Employers is published by U.S. Citizenship and Immigration Services and is intended to answer any questions you may have about the I-9 form and the employment eligibility verification process. We’ve taken a moment to outline here some tips and good practices that may help you in your efforts to properly document all your employees:

1) Read and refer to the M-274

It’s not a riveting read but the M-274 Handbook for Employers is clearly written and offers a comprehensive breakdown of which documents are valid for proof of identity and employment eligibility, as well as providing directives for more specific scenarios, such as filling out the I-9 form for minors, for special placement employees with disabilities, and how to process employees with temporary employment eligibility. Especially relevant for the hotel industry are the instructions on reverifying rehired employees (p.12), as mentioned earlier. Also, hospitality groups hiring foreign-born workers will be greatly aided by the M-274’s guidance on verifying these employees’ eligibility documents. For example, a foreign-born person arriving on a J-1 visa (Nonimmigrant exchange visitors), such as through the Work and Travel USA program, must proffer an unexpired foreign passport, an I-94 form, and a DS-2019 form specifying the sponsor. If that employee is working outside of the program indicated on the DS-2019, he or she must provide a letter from his/her responsible school officer (M-274, p. 54). Please be aware that the J-1 visa encompasses several different categories of student exchange visitors and not all will be eligible to work. In short, members of the hospitality industry may encounter situations that step outside the “typical” I-9 and deriving your answers from the M-274 should serve you well.

2) Learn what hiring practices are considered discriminatory and ensure that you don’t engage in them

Given the atmosphere of strict government enforcement, some overzealous companies may unwittingly engage in illegal practices while trying to avoid hiring unauthorized workers. As a general rule, all employees should be treated equally regardless of citizenship or immigration status, national origin or native language. Be sure not to set different employment eligibility verification standards for citizens and noncitizens. All employees should be permitted to choose which documents they wish to provide for eligibility authorization and the employer may not request that any particular document be provided. Employers should not request to see work authorization documents before hiring on the grounds that someone seems “foreign” or is not an American citizen. Also, one should not refuse to accept a work authorization document because of a future expiration date. Lastly, companies should not limit jobs to U.S. citizens unless citizenship is required for the specific position by law. As outlined in the M-274 handbook, you may legally prefer a U.S. citizen or national over an equally qualified alien for a specific position but may not adopt a blanket policy of always preferring citizens over noncitizens. Hiring discrimination is also covered at some length in the M-274 and when in doubt, again, it is an excellent reference text.

3) Store your I-9s safely—and possibly electronically

In the event of an ICE inspection, an employer will be given 3 days’ notice before making all forms available to the Department of Homeland Security, the Office of Special Counsel or the Department of Labor. I-9s are required to be stored for three years after the date of an employee’s hire, or one year after you or the employee terminates employment. An employee who retires after fifteen (15) years is required to have her I-9 on file for sixteen (16) years. For some larger hotel groups, that may mean tens of thousands of forms to be procured on very short notice. If your company is large enough that maintaining paper I-9s would become an onerous task, it may be wise to consider electronic filing and management of the forms. Several electronic I-9 compliance programs are on the market today and many feature the ability to check for basic errors and send reminders when work authorization requires reverification. However they are more expensive than the paper version (which is free) and none are completely infallible. If you opt to file using the physical I-9s, it is recommended that you store them independently of personnel files so that sensitive material will not be divulged should you be audited.

4) Familiarize yourself with the E-Verify system and decide whether or not it will work for you

E-Verify is a free web-based verification system that was created by the Department of Homeland Security. The service is voluntary for most employers (federal contractors are among those for whom participation is mandatory) and more than 175,000 employers currently participate. Rather than determining employment eligibility yourself, I-9 forms are completed and then an electronic query is submitted to the E-Verify database. The system will then respond with either an approval message or a tentative nonconfirmation. The latter does not necessarily indicate that the employee is not authorized to work but may stem from a documentary error (such as failing to register a name change) and will require additional steps to verify eligibility. Use of the E-Verify system has been strongly promoted by the U.S. government but the system is not without its hiccups. You may want to review the program yourself before you decide to use it or not. One thing to keep in mind is that once you use E-Verify for some employees, you should use it for all. You may not verify selectively.

5) Perform an internal audit

The best way to prepare for an ICE audit is to preempt one. We recommend engaging a professional third-party to perform an audit of your I-9 forms so that small but potentially substantive errors can be detected. Performing an internal audit also carries with it the benefit of establishing a “good faith effort,” demonstrating to the government that you have completed and reviewed your I-9 forms to the best of your ability, and may therefore spare you certain civil and criminal charges should they be levied against you. Performing even a sample audit may reveal flaws in your I-9 management and maintenance that can be avoided in the future, thus ensuring that employees will be properly documented going forward.

6) When in doubt, consult a professional

Keeping employees properly documented via Form I-9 can be very complicated business, even for those with extensive knowledge of employment and immigration law. Consulting a professional may stave off substantial legal fees to defend against civil or criminal charges stemming from improperly verified hires. For industries with hiring practices as complicated as that of the hotel industry, an ounce of prevention is often worth the pound of cure.

Michael Wildes is the Mayor of Englewood, NJ, an immigration lawyer and a former federal prosecutor. As partner of preeminent immigration law firm Wildes & Weinberg, Wildes has become internationally renowned for having represented the United States Government in immigration proceedings, for the successful representation of several defectors who have provided hard-to-obtain national security information to the United States and, most recently, for obtaining an injunction to prevent Libyan leader Muammar Gaddafi from residing in New Jersey during the 2009 UN Summit. Mr. Wildes can be contacted at 212-753-3468 or mwildes@wildesweinberg.com Extended Bio...

HotelExecutive.com retains the copyright to the articles published in the Hotel Business Review. Articles cannot be republished without prior written consent by HotelExecutive.com.