Avoiding Fines by Starting the I-9 Process Early. Just Not Too Early…

by Foley & Lardner LLP

As we have noted in prior posts, Immigration and Customs Enforcement (“ICE”) has been aggressively pursuing I-9 inspections and imposing record fines (about $12.5 million per year) as part of its multi-year strategic plan. Employers should not turn a blind eye to this uptick in enforcement activity and would be wise to fight back by improving their compliance. One of the top concerns must be timely completion of the Form I-9 Employment Eligibility Verification. An employer has a very short period in which to complete the I-9 process with the new hire: by the first day of employment for section 1 (the employee’s section) and by the third business day after employment begins for section 2 (the employer’s section). Late I-9 Forms constitute substantive violations. An employer cannot avoid a substantive violation by arguing that it tried to comply in good faith.

In response to these stringent requirements, some employers are beginning the I-9 process before the first day of a new hire’s employment. While the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) will permit this approach, early I-9 completion is not a perfect solution. Indeed, an employer can trigger new violations if it is not careful. Here are some tips for employers who wish to start the I-9 process early:

  • Never ask to complete the Form I-9 until after the job applicant has accepted the job offer: The antidiscrimination rules prohibit an employer from using I-9 completion to screen out job applicants. The employer first must decide that it wishes to hire the applicant. After the job applicant accepts the job offer, the employer may begin the I-9 process.
  • Implement this process uniformly: Ask all individuals who have accepted a job offer to start the I-9 process before the first day of employment. Selective requests for early I-9 completion may lead to discrimination charges and fines under the I-9 rules.
  • For E-Verify employers, follow the E-Verify rules after early I-9 completion: E-Verify employers may open an E-Verify case inquiry after the Form I-9 is completed. If the E-Verify case inquiry is opened before employment begins and the E-Verify result is a Tentative Nonconfirmation (“TNC”) or DHS/SSA hold, it is possible that the E-Verify inquiry will not be resolved by the planned start date. The employer cannot delay the start of employment when the new hire is still within the period allowed by the E-Verify program for resolving the E-Verify case inquiry.
  • Do not begin the I-9 process too far ahead of the employment start date: There should not be a significant gap between early completion of Form I-9 and the start of employment. Significant gaps create the potential for incorrect or missing entries on the I-9 Form (e.g., the start date may be unknown or change, and the employer may fail to update section 2 of the I-9 Form with the correct information). The job applicant also may change his mind, which will cause the employer to have I-9 Forms for individuals who were never employees. For E-Verify employers, the DOJ and DHS’s E-Verify Monitoring and Compliance Branch may become concerned that the employer is misusing E-Verify. These agencies may investigate whether the employer is using early I-9 and E-Verify completion to screen job applicants, rather than to verify employment authorization following a legitimate, accepted job offer.
  • Allow the new hire three business days after the start of employment to present a List A document OR a List B document and a List C document from the I-9 List of Acceptable Documents (verifying identity and employment eligibility). The I-9 rules permit the employer up to three business days after employment commences to complete section 2 by entering information about the new hire’s document(s) under List A OR List B and List C. It is possible that the new hire may certify in section 1 that he is authorized to work in the United States, but not present the identity and employment eligibility document(s) before the first day of work. An employer may encourage the new hire to present the document(s) of his choice as soon as possible. If he does not do so, the best practice is to allow the new hire the full period (three business days after employment begins) to present the I-9 document(s). If the new hire does not produce qualifying document(s) by the end of the three business days, the employer may terminate for failing to complete the I-9 verification process.

Finally, timely completion is only one part of I-9 compliance. What is stated on the I-9 Form is as important as when it is stated. Timely and properly completed I-9 Forms are the key to avoiding significant fines during an I-9 inspection by ICE.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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