Through the Looking Glass: I-9 Compliance from In-House Counsel Perspective
By Gary Endelman
In private practice, lawyers tell clients how to complete the I-9 while, in-house, you actually have to do it. That is the key difference and everything else flows from this fundamental distinction. Compliance becomes your responsibility not that of your client and you must assume and retain personal responsibility for getting it right. It is hard, perhaps impossible, for private practitioners to appreciate the paradigm shift that occurs magically when one crosses through the looking glass to this other world. The successful lawyer is the one who knows that the journey must be made if only in his or her own mind.
There are some companies that have a culture of compliance, either because they have been the subject of a raid or I-9 audit and fear the dreaded knock on the door in the future or because they employ lots of foreign-born workers and cannot afford to have any of them put out of commission. Fear concentrates the mind and creates a pattern of compliance that is largely self-enforcing. To a very real extent, the agile advocate can capitalize on this anxiety and make it a tool to endow their legal caution with a real-world steel that it would otherwise not have.
Your corporate masters will always want to know the cost of compliance and also the cost as well as the risk of noncompliance. While few corporate mucky mucks will deliberately ignore the law, far many more are reluctant to change the way business is done in a structural sense, or devote major bucks for comprehensive correction, if holding back will not dramatically affect the bottom line or result in blaring page one headlines. There is always a fierce competition for corporate dollars and the relative absence of meaningful and sustained I-9 enforcement in the Bush Years made it more difficult for the message of compliance to be heard and remembered. Everyone knows that a W-4 or 1099 has to be completed right away when someone reports for work; no one wants to play Russian roulette with the IRS; until recent years, the I-9 did not have nearly the same dramatic profile. That is where the switch to employer-oriented audits by ICE in the Obama Administration has made a dramatic difference. Worksite enforcement is no longer something that would be nice to have; it has now become a pressing and persistent concern.
I-9 compliance generally does not have a very high cache in the HR world so that the immigration lawyer is often dealing with an overworked person with a whole lot to do, most of which he or she considers to be more important than I-9 compliance, a not wholly inaccurate conclusion. This does not mean that your HR contact does not want to get the I-9 right the first time on time; they do. It does mean that other things routinely take precedence if there are emergencies or thought to be so and this is more the rule than the exception. This makes it vital that the immigration lawyer maintain close and frequent contact with HR, that their advice be plain spoke and easily understood, and that they only tell HR what is necessary to know when it is necessary to know it.
It would also help to keep track of the many changes in the HR world since the musical chairs reassignment of HR representatives in any company of size is an inescapable if maddening fact of life. Just when you have trained your HR contact to the point when they begin to take you seriously and actually comprehend the essential thrust, if not the myriad nuances, of what you are trying to tell them, they are off to a new job in a new business unit or division, thus resulting in the introduction of yet another novice who thinks you have just parachuted in from Mars when you begin your I-9 spiel. That is why you need to keep abreast of HR changes and actually pay a visit in person (no not another email!) to the new HR contact before an I-9 problem rears its ugly head.
Nothing is more frustrating than trying to keep up with employee relocation particularly when you need to update the I-9 as the original period of work authorization expires or will soon breathe its last. Many times, you do not even know the employee has left town and you learn about it after the fact. After all, everyone involved does not think of immigration first, if at all. If your employer uses Paper I-9s, you could have a devil of a time getting the original I-9 to the current work location so that some HR representative that you do not know and who has never heard of you will be willing to spend the time and take on the tender mercies of Section 3. It might be a mystery as to where the original I-9 is since, in all likelihood, this is not the first new change of scene for your alien beneficiary. That is when you have to know who in the HR community to contact and especially who will be willing to listen to you before their eyes glaze over and they decide to seek refuge in an early Happy Hour. In fact, if you are doing your job right as a good lawyer, you will know ahead of time whom to call and maybe be the one to pick up the tab for the first round.
An inside counsel worth his or her salt will try to drive home the following key points:
- Client education and training never ends. Do it on a regular basis.
- Put someone in charge of I-9 compliance and let everyone know who that is.
- Make sure that whoever you select takes ownership of the need for doing it right.
- Establish a uniform practice of I-9 completion and retention- whatever you do, everyone does it together in the same way at the same time. One system that can be understood and administered – this is your goal.
- If your employer has different locations, your job is to establish a set of best practices that will be adopted and used at all of them.
- If your company wants to move away from paper to electronic I-9s, your job is to select a vendor that understands how your company works and will tailor their system to this unique culture. Make sure whatever selection is made aligns with ICE regs and requirements- remember Abercrombie where a huge fine was levied in the absence of any unauthorized workers.
- Get buy-in from the top of the house for whatever I-9 decisions you make.
I-9 compliance works when you take the time and have the talent to become part of the corporate culture. That being accomplished, you are halfway home. Hang on, it’s going to be a bumpy ride but, in the end, probably worth it.