Employers Need to Pay Close Attention to Form I-9 Processing

In today's ever-evolving legal landscape, compliance with immigration laws is crucial for businesses of all sizes. Employers have a legal obligation to verify the employment eligibility of their workers, and one essential aspect of this responsibility is the completion and maintenance of Form I-9 (Employment Eligibility Verification).

Each employee hired must have a properly filled out, signed and documented Form I-9 in a dedicated employment file. Technical mistakes on Form I-9 (or more serious substantive errors of failures to complete) can cost employers tens of thousands of dollars in penalties and fines. This client alert aims to provide HR professionals with an overview of Form I-9 processing, helping you ensure compliance and minimize potential risks for your organization.

I-9 Form: Purpose and Basics

Form I-9 is a federal document required by the U.S. Citizenship and Immigration Services (USCIS) to verify the identity and employment eligibility of every new employee hired after November 6, 1986. It is illegal for employers to recruit employees or refer them for a fee when they are unauthorized to work in the United States. It is also illegal for employers to knowingly hire, or continue to hire, aliens who are not U.S. citizens (or have certain visa rights to be in the United States) and who are not authorized to work in this country. Finally, it is illegal for U.S. employers to hire a worker without properly completing and maintaining a proper Form I-9 within three business days of the first day of employment. It is the purpose of the Form I-9 process for employers to document and certify that they are not engaged in those acts.

The Form I-9 consists of three sections:

1. Section 1: Employee Information and Attestation: The employee completes and signs this section, providing personal information and attesting to their identity and legal work eligibility status in the United States.
2. Section 2: Employer or Authorized Representative Review and Verification: The employer completes and signs this section by having an authorized representative (usually HR staff) examine the employee's original documents to confirm their identity and eligibility to work. These documents must be recorded on the form.
3. Section 3: Reverification and Rehires: This section is used when re-verifying the employment eligibility of employees whose authorization has expired or when rehiring individuals.

Documents for Verification

Acceptable documents for verification fall into three categories: List A, List B, and List C. Employees must either present one document from List A (which proves both identity and right to work), or one document from each of List B (identity) and List C (right to work). Examples of List A documents include a U.S. Passport, a Permanent Resident Card (e.g., “Green Card”), and certain other employment authorization documentation. Examples of List B documents include a valid state-issued driver's license, voter registration card, or school ID (with photo). Examples of List C documents include a certified birth certificate issued by a U.S. state / county / municipal branch of government, a valid social security card with account number (and no limitations on right to work), or a USCIS Form I-179 issued to U.S. residents.

Compliance and Recordkeeping

HR professionals must be diligent in creating and maintaining I-9 records for all employees. This includes not only the forms themselves but also proper storage and document retention. It is essential to remember the following compliance guidelines:

1. Timely Completion: Section 1 of Form I-9 must be completed by the employee no later than their first day of employment, and Section 2 must be verified and certified by the employer within three business days of the employee's first day of employment.
2. Accuracy: Ensure that all information provided by the employee and employer is accurate and complete.
3. Reverification: Keep track and make note of the expiration dates on any employment authorization documents (EAD). Promptly reverify the employee's eligibility before their documents expire (and no later than 3 business days after that expiration date).
4. Record Retention: Form I-9 records must be retained for three years from the date of hire, or one year from the date of termination, whichever is later.

Technical Errors v. Substantive Violations

Employers who face the risk of ICE inspections and audits should understand that mere inaccuracies in filling and maintaining Form I-9s may lead to not just warnings, administrative fines, and penalties, but to possible criminal prosecution. ICE may identify technical errors or substantive violations. Technical errors can happen if (among other things):

• The employee’s name, address, or date of birth is missing in Section 1
• There is no date for the beginning of employment in Section 1
• There is no name, address, signature, or date for any third-party preparer and/or translator
• There is no title, business name or address in Section 2, or
• There is no document title, identification numbers, or expiration dates of proper List A or List B/C documents

ICE will provide an employer a minimum of 10 business days to prove correction of these technical errors and will usually only issue a fine if those errors are not corrected during that 10-day window.

ICE, however, may identify more serious substantive violations which will result in fines if (among other things):

• The employer failed (either accidentally or intentionally) to prepare and complete the Form I-9 on time (within 3 days of first employment)
• The employer failed to secure the employee’s signature or other required information in Section 1 (within one day of first employment)
• The employer failed to sign Section 2, or
• The employer failed to properly require or review and approve a List A / List B / or List C document

Discovering and Correcting Mistakes

If and when an employer discovers errors or violations of the Form I-9 requirements by internal audit or otherwise, it is important for the employer to act immediately (and to document to the file its discovery of the problem and immediate response). Technical errors can be corrected by having the appropriate person (employee for Section 1, employer for Section 2) correct technical errors in the documentation. Substantive violations, however, cannot be corrected and will remain demonstrated in the HR file documentation subject to possible audit and discovery by ICE. If an employer discovers a substantive violation (e.g., employer audit reveals that several employees were hired without the requisite Form I-9 being completed), then the employer must document the file with an explanation of how the violation occurred (i.e., that it was a result of innocent mistake or negligence rather than intentional bad faith) and it should contact the employee (if still employed), explain that the I-9 was never created for him or her, and then properly complete the process and document the HR file with the new and proper (current) Form I-9.

It is important to note that to fill in a date from the past or “backdate” a new Form I-9 is always a bad idea because it is easily discoverable and is a violation of federal law that will be viewed by ICE as a sign of bad faith. Therefore, always provide the current date in the attestation on new or corrected forms.

Penalties for Non-Compliance

The Immigration and Customs Enforcement (ICE) division of the U.S. Department of Homeland Security increasingly performs on-site audits of immigration documentation, and it will always review and audit the Form I-9 documentation maintained by employers in the HR files. It is during any such audit that the errors or violations discussed above are often discovered. Failure to comply with I-9 regulations as set forth above can lead to significant monetary penalties for the employer, including fines for each missing or incorrectly completed Form I-9 (in other words, a civil fine ranging from $272 to $2,701 for each missing I-9 for each employee for bad or missing paperwork, or fines from $676 to $27,018 per worker for more serious and intentional violations).

There are numerous reported cases in which even relatively small employers who innocently but negligently failed to obtain proper Form I-9’s at the time of hiring employees have faced significant monetary fines from ICE in the hundreds of thousands of dollars. See, e.g., Buffalo Transp., Inc. v. United States, 2^nd Cir., No. 15-3959-ag (October 18, 2016) (in which the Second Circuit upheld fines against a relatively small travel company in the amount of $500 to $600 per violation for each of the 138 employees hired without a Form I-9). Penalties may vary depending on the number of violations at issue, whether the errors were inadvertent or intentional (done in bad faith), whether any of the workers at issue turn out to be illegal, and the employer’s history of prior violations. Repeat offenders can face more severe consequences, including potential criminal charges for knowingly employing unauthorized workers.

E-Verify and State / Federal-Specific Requirements

Some employers elect to use a voluntary online electronic system called E-Verify, which compares a worker’s Form I-9 information against certain government databases to verify identity and employment eligibility. Some states have additional requirements and there are state and federal laws and regulations which prohibit employment discrimination based upon non-standard uses of E-Verify with respect to only certain employees (and before they are given job offers). In addition, certain employers (especially those with certain federal or state contracts) may be legally obligated to use the E-Verify system for employment eligibility verification for any employees involved in those transactions.

Be aware of your specific state’s requirements and any contractual or industry-specific regulations concerning the use of E-Verify. If an employer enrolled in the E-Verify program later discovers failures in connection with the I-9 process discussed above with respect to one or more employees, the employer should run every such employee back through E-Verify, but the employer will likely have to indicate the reason for the new form / delay when prompted by the system. Please note that when an employer who is contractually required with certain federal or state agencies fails to comply with I-9 requirements or E-Verify, there could be very serious consequences under various state or federal statutes which require self-reporting of violations and the debarment of that employer from state or federal programs for certain periods of time – in that instance, we highly recommend that qualified immigration law legal counsel be consulted to assess the situation.

Conclusion

Ensuring compliance with Form I-9 processing is a vital aspect of HR responsibilities. Failure to do so can result in significant financial penalties, loss of business, and other legal repercussions for your organization. Regular training, attention to detail, and a thorough understanding of the law are key to maintaining compliance and mitigating risk. Always consult with qualified legal counsel for any questions or concerns regarding I-9 processing and compliance.

For more information or assistance with I-9 compliance, please do not hesitate to contact the Labor & Employment Team at Woods Rogers Vandeventer Black. We are here to provide guidance and support to help you navigate the complex world of immigration law.