Dealing with Form I-9 and its accompanying processes is just one of the many weighty employer responsibilities established by the federal government. For businesses big or small, the processes pertaining to this form are crucial for their employment and immigration compliance. According to the Immigration Reform and Control Act of 1986 (IRCA), all employers must establish the identity and employment eligibility of employees hired after November 6, 1986, and government investigations of employers’ I-9 compliance have been a key part of efforts to combat unauthorized immigration since. The attention the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) continue to pay to this issue is a clear sign that Form I-9 is one piece of paperwork employers simply cannot afford to overlook and need to keep in perfect order. Part of this process includes understanding and avoiding common Form I-9 misconceptions.
What Can Go Wrong on Form I-9?
The main intent of the Form I-9 is to ensure that only those individuals authorized to work in the U.S. get employment in the country. Sounds simple, and in essence, it is. However, employers with a completely authorized and legal workforce may still incur big fines for paperwork violations. ICE has used an enforcement-based approach in an attempt to instill a culture of compliance among employers. The I-9 process is established by federal law and the regulations surrounding it should be taken into account when employers attempt to comply. Errors still occur, and it is important to note that there are over 900 pages of guidance related to Form I-9, so maintaining fully compliant processes can be a huge task.
Most of the penalties issued for Form I-9 violations come from technical and substantive errors, i.e. data or process mistakes rather than hiring unauthorized employees.
Form I-9 Misconceptions That Can Cause Real Problems
Many penalties stem from a poor understanding of both the importance of Form I-9 and the need for strict adherence to the regulations. Employers struggling with I-9 processes should not wait for an audit to teach them the costly error of their ways but should take a proactive approach to addressing inconsistencies. Below are some of the most common Form I-9 misconceptions and methods to avoid falling victim to them.
Form I-9 Deadline is Three Business Days
The three-day rule is not as intuitive as it seems. Let us explain: the three-day rule employers believe is the deadline to have Form I-9 completed is not the deadline for employees – their deadline to complete Section 1 of the Form l-9 is the end of their first working day, the hire date.
The next portion, Section 2, requires employers or their agents to verify the information entered by the employee in Section 1. This is what needs to be ready within the three-day deadline. By that time, the employer must have new hires present the identification documents and complete Section 2 of the form. It is important to note that the rule is often referred to as the Monday-Thursday rule, because it actually calls for the timing to be 3 days after the first day of work for pay.
It must also be stressed that the deadline for completing Form I-9 is not flexible. Backdating the form is illegal, and just like the other inaccuracies carries a hefty fine if discovered. Thus, employers struggling with meeting timing deadlines may want to adjust their processes and have employees complete the entire I-9, including Section 2, on or before the first day of work for pay. The I-9 may be completed in its entirety any time after an offer and acceptance has occurred.
Making a Mistake on Form I-9 is Tolerable
I-9 audits show that majority of completed I-9 forms are not mistake free. It is important to remember that the I-9 process is applicable to all businesses, regardless of their type and size, and to all employees, with exception of domestic help, contractors, and unpaid volunteers. Depending on the nature of the offense discrepancies uncovered in an audit, penalties may vary widely and can amount to millions of dollars, which could be devastating to smaller companies. Also, the accompanying publicity does little to help a company brand or stock price.
Substantive violations that occur, for instance, when employers fail to complete the form in a timely manner or fails to inspect personal identification documents, can result in fines ranging from $252 to $2,507 per violation. Knowingly hiring or continuing to employ an unauthorized employee leads to fines ranging from $627 up to $25,076. If employers engage in a pattern of hiring unauthorized individuals, they could risk criminal penalties of $3,000 per employee and six months in prison.
Technical violations are errors that ICE allows employers to correct. Employers are given 10 business days to make necessary corrections, which means these types of errors often do not result in a fine, unless the employer has so many they struggle to meet the deadline, which is a common occurrence. Technical violations adhere to the same fine range as substantive violations but are considered lesser offenses and include mistakes such as improper issuing authorities listed, failure to add the Section 2 completer’s title, failure to complete the “preparer/translator” section when needed, and many more.
Performing internal I-9 audits is the best way to ensure your company is prepared for dealing with outside enforcement. An initial full audit should be conducted, then employers should plan on an annual self-audit, even if that’s just a spot-check of I-9s across locations for a multi-state employer. Employers should make corrections as necessary
Form I-9 is Always the Same
Compliance with I-9 standards is impossible if one crucial element is neglected, and the wrong version of the form is on file. Make sure to always check the revision date printed on the bottom right-hand corner of the form, as well as the expiration date.
The existing version of the Form I-9 expired on 31 October 2022. The United States Citizenship and Immigration Services (USCIS) has announced the new form to come at an unspecified date. In the meantime, the employers should continue to use the expired Form I-9. However, upon the release of the new version of the form, employers should be prepared to switch to the new version. Employers are usually given at least 90 days to make the transition to the new version, so completers need to be mindful regarding the release date of the new form.
Employer Has a Right to Request Specific Type of Document
Looking at the process of Form I-9 completion, employers sometimes take the responsibility of verifying the authorization documents too strictly. ICE warns about this problem, as a serious concern leading to discrimination charges. This happens when an employer asks for specific documents in the verification process, instead of allowing employees to freely choose either one document from list A, or a combination of documents allowed on lists B and C.
Employer completers are also not expected to be document experts. If you’re examining documents presented as part of the Section 2 process with a magnifying glass, you’re likely taking the process just a bit too far. The reasonable person test should serve as a guide here…”would a reasonable person accept the document presented”. As long as the document relates to the person presenting it and passes the test of reasonability, the employer responsibility is met.
It is crucial for employers to be aware of this stipulation, and avoid charges that could come both from employees and the ICE. Your concern as an employer should be more on the authenticity of the documents presented. Your new hire has a right to produce any document that reasonably appears authentic and has its place on Form I-9 lists of acceptable documents, and it is up to you to check it, verify its authenticity, save a copy with the file, and finalize the process according to your findings.
Company Needs to Store Form I-9 Files Indefinitely
First, when it comes to retention it should always be stressed that every active employee should have an I-9 on file if they were hired after 1986, However, a problem we often see Form I-9 concerns the storage and retention of the forms. Employers often think they are erring on the side of caution when deciding to store Form I-9 indefinitely. This is not correct and has the possibility of adding audit liability and data security issues. The retention rules are clear: I-9 records do not need to be saved more than one year after the date of termination of employment, or for more than three years after the hire date, whichever comes later. Employers should remain mindful of the stipulation that data contained in the I-9 is to be used for I-9 purposes only.
E-Verify makes Form I-9 Obsolete
This is one of the Form I-9 misconceptions often encountered among employers. No matter the weight provided the E-Verify system the verification process, it does not replace the legal requirement to complete and retain Form I-9. Even if an employee sails through the E-Verify process with success, they are not free of the obligation to comply with the I-9 process.
E-Verify is a system that provides electronic verification or confirmation of a new hire’s employment eligibility. It compares the information from an employee’s Form I-9 with records available to the Social Security Administration or DHS to verify the identity and employment eligibility of each newly hired employee. This is a relatively painless process and in the vast majority of cases returns an “employment authorized” result within a few seconds.
Form I-9 is mandatory for all employers, while E-Verify is a voluntary program, although many states also require its use for all or at least some employers.
Debunk Form I-9 Misconceptions to Avoid Hefty I-9 Fines
Employment compliance requires impeccable I-9 processes that need continual adjustment. Any shortcuts should be viewed with caution, as they often lead to catastrophic results.
Staying on top of these requirements and never committing violations is not an easy task to accomplish. It takes time and requires skillful and trained staff, education, and awareness. The administration is always keen on enforcement, and there is no time like the present to get everything in order to prepare for inspection audits, which could be a mere 72 hours away, (which is how long employers have to produce I-9s once they receive a Notice of Inspection). This is why employers need to be keenly aware of Form I-9 misconceptions and myths, establish a rigorous system for I-9 management, implement a policy for regular self-audits, and steer clear of potential violations leading to severe ICE penalties.
When considering the best option for I-9 management, employers need to pay attention to new developments in technology, not just in the legal field. Given the choice to maintain the records in an electronic form, they should always opt for it, as the paper or microfilm methods of storage are liable to damage, and the omissions made are more difficult to notice and correct. Going paper-free can make a world of difference not just in completing but also in storing and retrieving files.
