Aye, Yai, Yai, I-9! Staying out of Trouble With Employment Eligibility Forms
With more focus than ever being put on immigration and citizenship, there's a renewed emphasis on I-9 compliance. Here's what you need to know to stay on the right side of the law.
In the past, large fines and penalties relating to I-9 non-compliance were rare, but in our new society with heightened focus on immigration and citizenship, Immigration Custom Enforcement (ICE) audits, investigations and even raids on employers are becoming more common. Recently, employers in the U.S. have experienced a crackdown on all matters relating to immigration resulting in I-9 responsibilities and compliance becoming more important than ever. I-9 non-compliance penalty amounts are increasing and at least one Court has recently held that violations that occurred years ago can be assessed at current penalty rates. Also, fines and penalties can be assessed based on each I-9 form found not to be in compliance with federal law. The amount of penalty is dependent on the date of the violation. Case law also has found that violations are generally considered to be continuing until corrected as opposed to a one-time violation resulting increased fine amounts.
ICE routinely argues in these types of cases, that the fines must be significant despite the size of the employer, to ensure compliance and deter future non-compliance by all employers. The Department of Justice recently announced the largest I-9 fine and penalty ever assessed at $34 million. In contrast, a dry-cleaning company who employed only 25 employees was recently fined over $44,000 for I-9 non-compliance. Non-compliance with I-9 requirements has become costly to employers and requires new attention and concern.
What is an I-9, who needs to have one, and what documents are acceptable
Employment Eligibility Verification Form I-9 is a United States Citizenship and Immigration Services (USCIS) form. Mandated by the Immigration Reform and Control Act of 1986, it is used to verify the identity and legal authorization to work of all paid employees, both citizens and non-citizens in the United. All U.S. employers must ensure proper completion of Form I-9 for everyone they hire for employment in the United States.
Both employees and employers (or authorized representatives of the employer) must complete the form. On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appears to be genuine and to relate to the employee and record the document information on the Form I-9.
Employers cannot mandate what documentation that the employee presents, but there is a list of acceptable documentation that meets the requirements of proof for I-9. These documents have been categorized into three lists. List A documents establish both identity and employment authorization such as a passport or passport card. If no documentation is available to comply with List A, List B documents establish identity such as a driver’s license and a variety of identification cards along with documents from List C that establish employment authorization. List C documents include, but are not limited to social security card, birth certification or employment authorization card issued by the Department of Homeland Security. I-9 also allows for specific documentation for individuals under the age of 18 and for those who are not citizens.
An employer may not discriminate in failing to hire an employee due to the future expiration date on a document presented in response to an I-9 request. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.
Making sure an I-9 is completed correctly
Section 1 is completed by the employee, but the employer is required to ensure that the form is complete and accurate. Section 1 requires the employee to give his or her full name and maiden name. The employee must indicate by checking the appropriate box whether he/she is a citizen, non-citizen, lawful permanent resident or an alien authorized to work in the U.S. Employee must sign and date this section and indicate whether a translator was used in the preparation of the form.
Section 2 is completed by the employer and must be done within 3 days of the hire date of the employee. Employers are required to inspect the documents presented by the employee, note the type of document, issuing authority and expiration date.
Section 3 is to only be completed by the employer when necessary and relates to reverification and rehires.
Common errors or omissions made by employers in completing the I-9 include:
- Failure to use the most current I-9 form. Current form is USCIS Form I-9 OMP No. 1615-0047 (Expires 8/31/2019) and can be obtained at www.uscis.gov/i-9.
- Failure to complete both sections of the I-9.
- Failure to include past/maiden names of the employees, and if no prior names were used “N/A” should be noted on the form.
- Failure to include the employee’s first day of employment.
- Failure to provide complete name and address of the employer.
The form is complete. Now what?
Do not mail or send the completed form to USCIS or ICE but instead retain original document.
If a mistake is found or later discovered on the I-9, employers are required to correct the mistake by completing a new form but should not post-date the corrected form.
Under record keeping rules, employers are required to retain all I-9 forms for 3 years after date of hire or 1 year after date of separation, whichever comes last. Employers should have I-9 completed forms on all current employees. Employers are not required to keep photocopies, but if you decide to do so, make sure that this is consistent for all employees. Finally, keep your I-9 forms separate and apart from the employee’s other personnel records to minimize exposure in an audit or investigation by keeping unrelated personnel documents out of the inquiry.
This article is meant to be utilized as a general guideline for Employment Eligibility Verification Form I-9. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
Cathryn Ensign’s practice focuses on employment law. She can be reached at 216-287-2979 or by email at firstname.lastname@example.org.
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