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:
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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