Written by Nick Harling, Esq., Of Counsel.
The employment eligibility verification requirement was established by the Immigration Reform and Control Act of 1986 (IRCA). U.S. employers must complete a Form I-9 Employment Eligibility Verification for every person hired after November 6, 1986
The Form I-9 requires employers to review and record data from an individual’s original identity and employment authorization document(s) and assess whether those documents appear to be genuine and relate to the individual presenting them.
Every employer is required to complete a Form I-9 for each full-and-part time employee, without exception.
Below is a comprehensive guide about the Form I-9 and Form I-9 inspections, as well as information pertaining to compliance for employers and more:
Completing the Form I-9
The Form I-9 consists of three sections.
The employee completes Section 1, and the employer completes Sections 2 and 3. The employer is responsible for ensuring that the I-9 is timely and properly completed. This includes having the employee complete Section 1 on or before the date of hire (i.e., first day of paid work).
Section 2 requires the employer to list the documents produced by the employee to verify identity and employment eligibility. The employer must complete and sign Section 2 within three business days of the employee’s date of hire.
To establish both identity and work authorization, an employee may present either:
- One unexpired “List A” document
OR
- One unexpired “List B” document (to establish identity) and one unexpired “List C” document (to establish work authorization)
Although an employer is responsible for any deficiencies of information contained in Section 1, an employer cannot require an employee to produce specific documents from Lists A-C. If an employee refuses to sign or attest to the information in Section 1, the employer is not obligated to complete Section 2 and should terminate the employee’s employment.
Employers must maintain the original Form I-9 for all current employees, as well as retain the document for all former employees for a period of at least three years from the date of hire or for one year after an employee has left the company, whichever is later.
Form I-9 inspections
U.S. Immigration and Customs Enforcement (ICE), an agency of the Department of Homeland Security (DHS), typically initiates an I-9 inspection by issuing a Notice of Inspection (NOI) to an employer.
Often these inspections occur because the agency received a tip from a competitor or former employee and/or because the agency has other reasons to suspect that the company may have committed Form I-9 violations. ICE also conducts random audits, without cause or suspicion. Employers should consult experienced immigration counsel to discuss their options as soon as they receive a NOI from ICE.
Upon receipt of the NOI, employers are normally given three business days to turn over all original Form I-9s from the period stipulated by the government. The government often requests additional documentation from the employer, such as a copy of the employer’s payroll, a list of current and former employees, the company’s Articles of Incorporation, business licenses, social security no-match letters, etc.
Although the government generally requires original Form I-9s within three days of the NOI’s service upon the employer, the government may grant reasonable extensions for the remaining requested documentation for good cause. No errors or violations can be corrected before the original Form I-9s are turned over to the government. In certain cases, the government can conduct a no-notice audit, with a court order.
Once the requested documents are submitted to the government, Garfinkel Immigration Law Firm typically collects and scans for record-keeping purposes all required I-9s when working with clients who have received NOIs.
When hired to assist with an I-9 audit, Garfinkel Immigration Law Firm first works to ensure that all required documentation is timely submitted to ICE. The Firm then works with clients to identify any potential issues and/or errors. While proactively correcting errors at this stage will not necessarily avoid government violations and penalties, it does best position the company for post-audit actions required by the government.
Form I-9 inspections: Technical/procedural violations, substantive violations and potential penalties
There are two different categories of violations that ICE may impose following a Form I-9 inspection:
Technical/procedural violations
Generally technical/procedural violations stem from the physical incompletion of the form itself. Examples of common technical/procedural violations include omission of:
- Employee’s maiden name or other names used, address or birth date in Section 1
- Employee attestation date in Section 1
- Employee’s complete name at the top of Section 2
- Document identification number in Section 2
- Employee’s or authorized representative’s title, business name or address in Section 2
- Employee’s first day of employment in Section 2
It is also important that employers make sure they are using the current version of the Form I-9 at the time of hire as this too is considered a technical/procedural violation. By law, ICE is required to give employers 10 business days to correct any technical/procedural violations uncovered during the I-9 inspection.
It is important to note that an employer cannot correct errors or omissions in Section 1 of the Form I-9, only the employee can make such corrections. An employer may only correct errors or omissions made in Section 2 or Section 3 of the Form I-9. Corrections must be made directly to the Form I-9, via pen-and-ink, with initials and the date placed beside any correction. A written explanation also must be provided for corrections that cannot reasonably be made (e.g., information unavailable, individual’s employment terminated).
Typically, employers can avoid a fine if they timely correct all technical/procedural violations and there is no history of previous I-9 violations.
Substantive violations
Substantive violations are more serious because they are more likely to result in a monetary fine for employers.
Common examples of substantive Form I-9 violations include:
- Failing to timely complete Form I-9s for all employees
- Unacceptable documents accepted
- Failing to correctly verify documents provided by employees
- Failing to fully note work authorization documentation in section 2
- Fraudulent documents discovered by auditors
Substantive errors cannot be corrected by the employer during the I-9 inspection.
Potential penalties
As mentioned above, employers are given 10 business days to correct any technical/procedural violations found during an I-9 inspection. Any uncorrected technical/procedural errors, as well as any substantive violation, may result in ICE issuing a warning or a fine to the employer.
ICE will notify employers of potential penalties through a Notice of Intent to Fine, which can be issued for any and all substantive and uncorrected technical violations and for knowingly hiring or continuing to employ unauthorized workers.
Fines range in monetary value on a sliding scale based on a number of factors. In most circumstances, fines for knowingly hiring and continuing to employ unauthorized workers range from $573 to $20,130 per violation, “with repeat offenders receiving penalties, at the higher end,” according to ICE. Meanwhile, penalties for substantive errors range from $230 to $2,292 per violation.
Employers can appeal I-9 inspection fines to the Office of the Chief Administrative Hearing Officer (OCAHO). This process can be both time consuming and add additional legal expenses. Employers should consult with experienced immigration counsel if they are considering an appeal of fines associated with Form I-9 violations.
In lieu of fines, ICE could issue a Warning Notice to an employer following an I-9 inspection. These are “issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.” However, employers who receive a Warning Notice should ensure that their Form I-9 generation and retention practices meet all legal obligations as a follow up ICE inspection is highly possible and continued compliance failures will likely result in fines.
E-Verify
E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA).
The online system is a free program that allows an employer to electronically verify employment eligibility of newly hired employees.
When an employer verifies work authorization with E-Verify, it establishes a rebuttable presumption that it has not knowingly hired an unauthorized worker, which can be an important factor to offset any violations discovered by ICE. Typically, an employer’s correct use of E-Verify reduces the risk of serious fines if individual documents uploaded to E-Verify do end up being fraudulent after further inspection.
Each state has different laws for when an employer’s use of E-Verify is mandatory. For example, in North Carolina, any business that employees 25 or more full-time individuals must enroll in E-Verify and use the program to confirm employment eligibility of all newly hired workers.
It is imperative that employers confirm the rules governing E-Verify in their state, as non-compliance could result in serious penalties, including substantial fines and other violations during an I-9 inspection.
However, participating in E-Verify does not provide employers “safe harbor” from worksite enforcement or Form I-9 inspections.
Form I-9 compliance and COVID-19
The Department of Homeland Security (DHS) eased some requirements relating to Form I-9 compliance in early 2020 due to the COVID-19 pandemic.
The temporary measures allow employers operating in a completely remote work environment to inspect new employees’ identity and employment authorization documents via digital methods.
It is important to note that the flexibility applies only to workplaces that are operating remotely – in other words, if there are employees physically present at a work location, the remote verification flexibility does not apply, and in-person document verification is required.
Find out more about COVID-19 related Form I-9 flexibilities here.
I-9 compliance for employers
It is imperative that employers complete the Form I-9 timely and correctly for all employees, as failing to do so could lead to serious violations and monetary penalties. Below are some tips and information for employers regarding completion of the Form I-9 and I-9 inspections:
Training HR managers
Employers should designate specific individuals, with trained back-ups, to handle I-9 compliance, as well as make efforts to train hiring managers on Form I-9 requirements and periodically review those guidelines and procedures with them.
Additionally, I-9 forms should be kept separate from all other personnel or payroll records.
Employers should consider contacting experienced immigration counsel to discuss proper Form I-9 compliance training for HR and hiring managers.
Web-based software
There are many automated web-based software platforms available that help employers and HR managers complete and store the Form I-9.
When used properly, web-based software makes Form I-9s easy to access and quickly turn over during an I-9 inspection. The software also usually requires all information to be entered and every section completed. In theory, that should reduce technical violations stemming from form omissions.
However, reliance on a web-based Form I-9 management software platform is not a panacea. Generalist HR management software platforms are not always sufficiently dedicated to ensuring I-9 compliance and may not be regularly updated to new requirements or may cause an employer to commit unintended substantive violations, such as requiring employees to submit specific or extra documentation to demonstrate work authorization.
Garfinkel Immigration Law Firm advises clients to consider the costs and benefits of relying on a software platform to manage Form I-9 completion and storage obligations. Alternatively, employers should store physical copies of all required I-9s and scan the documents into a server as a digital backup.
Preemptive audits and on-site training
Employers who are concerned that their Form I-9 completion and storage practices may fall short of their legal obligations should consider scheduling a preemptive audit with experienced immigration counsel.
During a preemptive I-9 audit, the attorneys at Garfinkel Immigration Law Firm inspect an appropriate sample of a company’s Form I-9s and advise clients on any errors and omissions that could result in future technical/procedural and substantive violations, as well as suggest process improvements.
The Firm also offers specialized training programs around Form I-9 systems and compliance. These on-site programs are tailored to each organization’s unique needs and help companies develop implementation and integration plans.
Contact the attorneys at Garfinkel Immigration Law Firm to receive more information about preemptive audits and on-site training programs.