A Washington drywall company recently learned the hard way that a partially completed I-9 form is insufficient to avoid costly penalties. The company was fined over $280,000 by the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) after ICE’s audit revealed that many of the employer’s I-9 forms were incomplete. The company appealed, arguing that the missing information was not substantial, it was easily inferred from the existing information, or it was easily referenced in copies of verifying documents kept by the employer.

Though the penalty was later reduced to $173,000, the Ninth Circuit rejected the employer’s plea for further leniency, stating that I-9 forms must be filled out – completely. An employer cannot avoid being penalized by claiming that its I-9 forms were “substantially” completed or that it had “good faith” reasons for the incompleteness. The court’s ruling also provides the following specific examples of costly errors:

- Copying and retaining verifying documents is not an alternative to fully completing an I-9 form. Employers cannot justify incomplete information on the basis that the information, though missing on the I-9 form, exists elsewhere in the employer’s files. The I-9 form itself must contain all relevant information. – Employers must ensure that employees fill in all relevant information in Section 1. For example, it is not enough that an employee simply attest to lawful work status – the employee must also identify the relevant basis for eligibility to work in the Unites States. – Where an I-9 form relies on a driver’s license as verification, the employer must list the issuing authority and the license number. It is no defense that the issuing authority might be inferred from the format of the license number or that a copy of the driver’s license is kept separately. The information must be contained on the I-9 form itself. – When rehiring a former employee, an employer should not “cobble together” the rehire’s old and new I-9 forms. In certain limited circumstances, the employer may fill out Section 3 (rehire section) of the most current version of Form I-9 and attach it to the initial Form I-9. Alternatively, the employer may complete a new Form I-9 with the individual being rehired (Sections 1 and 2), but then may not rely on the employee’s attestation on the initial Form I-9 as his or her basis for employment authorization.

The $170,000 fine imposed for partial completion of I-9 forms underscores the importance of strict compliance and attention to detail when completing I-9 forms. The costliness of even partial compliance should also cause employers to consider auditing I-9 practices and records.