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THE I-9: EVERY COMPANY’S POTENTIAL NIGHTMARE

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THE I-9: EVERY COMPANY’S POTENTIAL NIGHTMARE

As many of you know, the I-9 form is technically one of the few absolutely required forms in an employee file.  As of Jan. 22, 2017, employers are now required to use a new version of I-9 form to verify employment eligibility for new hires. ICE (Immigration & Customs Enforcement) has recently increased the frequency and intensity of the I-9 form (aka Employment Eligibility Verification form) audits. Employers must be certain they are compliant with the regulations for the I-9 form to avoid steep fines or even lawsuits from the government, and with this new administration, audits and raids will surely be more aggressive and common than during past administrations.

Below is some information regarding I-9’s and how to make sure that your files are compliant with all Federal Laws.

What is the I-9, and why is it so important?

Form I-9 requires employers to verify that each employee hired after Nov. 6, 1986 is eligible and legally authorized to work in the U.S., per the Department of Homeland Security and U.S. Citizenship and Immigration Services. The form also asks for identification for all employees. This requirement applies to both U.S. citizens and noncitizens.

Who should fill out the I-9 Form?

Both employee and employer fill out the I-9. The employee fills out section 1 while the employer fills out section 2. If your employee is remote, the employee can fill out section 1and then bring his/her identifications to either his/her local police station or a notary public. The employee should ask whomever they bring the documentation to, to review his/her identification and complete section 2 of the I-9 form and then have them send the completed form to your Human Resources department. The form must be completed within 3 days from the date of hire.

The I-9 cannot be given to a candidate who is applying for a job. It can only be given to a candidate once a position has been offered and the candidate is now an employee.

What type of identifications are required?

The most common types of identifications are: Birth Certificate, Social Security Card, List C documents. Driver’s License, ID Card, School ID, Voters Registration Card, US Military Card, List B documents. Passport, Permanent Resident Card, Foreign Passport, Employment Authorization Document, List A documents.Though you are not required to keep copies of documentation, I would recommend that you do. It makes for a quicker audit and ICE tends to lean in your favor if any discrepancies are found. Also, you do not have to renew them every year, however some documents expire and will need to be updated to keep within compliance. These are usually List A documents that pertain to foreign workers.

There are many sites on-line to find examples of completed I-9s based on the documentation provided to help in filling out a correct I-9.

One thing an employer cannot do is tell any new employee what documents they must use. An employer can explain what types of documentation are accepted, but they cannot dictate what specific forms of documentation a new employee must use. This is a violation of an employee’s rights and can be reported to ICE.

Storing I-9s?

While I-9s can be kept the old-fashioned way, in paper personnel files, or electronically, the government recommends the following:

  1. Keep I-9’s separate from other files in a filing cabinet or binder. This makes an audit from ICE easier.  I would recommend that you keep the forms in alphabetical order and separate termed and active employees.
  2. Make sure they are easy to access when requested. You have 3 days to access I-9s for an ICE audit.
  3. Make sure only authorized employees have access to the I-9s.

How long do you have to keep an I-9 on file?

A company must retain the I-9 form for a period of up to three years from the date of hire or one year after the employee's final day, whichever is longer. 

What are the penalties for an incomplete/incorrect I-9 Form pertaining to keeping a company compliant?

If ICE finds a company isn't compliant with Form I-9 regulations, ICE will notify the company and allow ten business days for correction. Failing to provide Form I-9s during an audit could subject employers to monetary fines up to $1,100 per violation per day for every day an employee has been on staff. ICE may also criminally prosecute employers that knowingly hired employees that were ineligible to work in the U.S. 

In addition to fining these businesses anywhere from $375 to $16,000 per violation depending on the severity of the charge, if a business continually violates the form I-9 stipulations, ICE reserves the right to bar the company from receiving government benefits in the future. 

Here is something to think over when saying to yourself, this could never happen to my company.

A company has 24 employees.  13 of the forms are incorrect as several are missing information; some have information written in the wrong places, some newer employees had expired documents.  The violation percentage is 54%, but this is the first violation.  The penalty assigned to this company would be 13 x $935 = $12,155.00

Don’t think this is serious?

In 2012, ICE collected over $13 million and made many management arrests. Do you want to be part of this statistic? This is serious business.

How does a company avoid fines and arrests?

  1. Make sure you have trained HR professionals sitting with all new employees when filling out the I-9.
  2. As stated above, make sure your I-9s are stored properly and can only be accessed by authorized employees, usually the Human Resources department
  3. Audit your I-9 files at least once a year to make sure your I-9 files are compliant with all federal regulations. For larger companies, 250 to 500 employees, I would recommend an audit every 6 months. For companies over 500 employees, I would audit your I-9 files every 3 months.

Don’t let the I-9 be your company’s nightmare. Be smart, be thorough and more than anything, make sure your I-9 files are correct on an employee’s DOH before filing them away.

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