Flexibility implemented during the COVID-19 pandemic for completing Form I-9s will soon be ending on July 31, 2023. Employers will be required to complete in-person physical document inspections of employee documents that were remotely inspected by August 30, 2023. Now is the time to ensure your company’s Form I-9s comply with the Immigration and Nationality Act.
On November 6, 1986, the U.S. Government enacted the Immigration Reform and Control Act requiring employers to verify the identity and employment eligibility of all individuals hired to perform labor or services in the United States in return for wages or other remuneration. The Act also created criminal and civil sanctions for employment-related violations. The Employment Eligibility Verification Form I-9 (Form I-9) was designated as the means of documenting this verification. Employers are required by law to maintain for inspection original Form I-9s for all current employees and all former employees for a period of at least 3 years from the date of hire, or for 1 year after the employee is no longer employed, whichever is longer.
Form I-9 has 3 sections that must be completed and signed within a defined period:
- Section 1 – must be completed by the employee no later than the first day of employment, but not before accepting a job offered.
- Section 2 – must be completed by the employer within three business days of the employee’s first day of employment. The employer must physically examine:
- one original document from List A (documents that establish both identity and employment authorization, i.e., a U.S. passport)
- a combination of one original document from List B (documents that establish identity, i.e., a driver’s license or ID card) and one original document from List C (documents that establish employment authorization, i.e., a social security card or birth certificate). A full list of acceptable documents can be found on the Form I-9.
- Section 3 – should only be completed and signed by the employer if there is a need to reverify documents and/or rehire the employee.
The civil penalties for substantive/uncorrected technical paperwork violations range from $224 to $2,236 per violation, while fines for knowingly hiring or continuing to employ unauthorized workers for the first offense range from $559 to $4,473 per violation. For substantive/uncorrected technical paperwork violations, the amount of the fine is determined by dividing the number of violations by the number of employees for which an I-9 should have been prepared to obtain a violation percentage. This percentage provides the auditor with a base fine amount depending on whether this is the employer’s 1st time offense, or if there have been previous offenses. The standard fine amount is then applied to each I-9 with violations and a company’s fines can add up quickly. For example, if an employer is audited for the first time and the auditor notes that there should have been 100 completed Form I-9s for employees, but 60 had some type of uncorrected/substantive violation, the employer could expect a fine of up to $2,236 per I-9 ($2,236 x 60 = $134,160).
The risks are too high to have a lackadaisical approach to Form I-9 compliance. Therefore, it is advisable to implement a formal internal I-9 compliance policy. If an employer does not yet have a formal policy, they should start by conducting an internal audit of its’ current Form I-9s to ensure ongoing compliance with the employer sanctions provisions of the INA. During an internal audit, an employer is allowed to correct errors or missing information (technical violations) on a Form I-9, but there is specific guidance on how this should be done. Correcting errors/missing information after the fact, may help reduce the amount of a fine by showing the employer is acting in good faith, should they be audited by the U.S. Immigration and Customs Enforcement (ICE). Therefore, it may be worth the effort to correct as many violations as possible by conducting an internal Form I-9 audit before ICE knocks on your company’s front door.
