Knowing you are in I-9 Compliance as an HR Professionals is important.
Are you in Compliance?
The Immigration Reform and Control Act of 1986 (IRCA) bars employers from hiring individuals, including undocumented immigrants, who are not legally able to work in the United States. The agency that enforces the IRCA is U.S. Immigration and Customs Enforcement (ICE). The IRCA requires employers to verify an individual’s eligibility for employment by completing the Employment Eligibility Verification Form, more commonly known as the Form I-9.
Please always make sure you are using the current Form I-9 version. You can go to the uscis.gov website for the most recent version.
Why is I-9 Compliance Important?
I-9 compliance is important for employers because the penalty costs for violations can become very costly. The Department of Justice has increased fines for Form I-9 violations. Technical errors on Form I-9s, such as failure to check a box, enter a date, and completing the wrong section, can now result in a monetary penalty between $224 and $2,236 per violation.
Immigration and Customs Enforcement (ICE) have increased worksite audits, resulting in civil penalties or criminal charges for the employer and the employer representative completing the form.
Here is an example of the U.S. Immigration and Customs Enforcement fines for knowingly hiring or continuing to employ Individuals unauthorized to work in the United States. The First Tier is for first-time offenders, Second for the second time, and the third tier is for three or more.
So How do we Complete the Form I-9 and Stay in Compliance?
First, the employee must to complete Section 1. One must complete Section 1 of the Form I-9 either before or on the employee’s hire date. The form becomes out of compliance when dated after their hire date. They can complete the Form I-9 before their hire date, as long as it’s not before they accepted the Job Offer. Suppose the employee has assistance filling out the form. In that case, the Preparer or Translator must also complete the bottom section of Form I-9.
The Employer or Authorized Representative must complete Section 2 of the Form I-9. This can be an HR representative or a hiring manager. The individual completing this section must also be the one receiving the verification documents.
The Employer or Authorized Representative MUST complete Section 2 of the Form I-9 on or up to three business days after the employee’s Hire Date. If this section is completed after three days, the form is considered out of compliance.
Remember that the Dates must be in American Date Format of Month\Day\Year versus the European of Day\Month\Year.
Employment Verification Documents
Always make sure the documents have not expired. This is a common mistake in Section 2. If their document has expired, request another from the List. Or allow the employee to get a replacement within the three-day window you are provided. This is why the employer is given the three business days to complete Section 2, as employees may not always realize their document expired before their first day of employment.
You will also find in your packet Common Form I-9 Mistakes and How to Avoid them. This shows the standard errors with the form so that you can be more proactive as an employer with completing this form.
Always make sure you are looking at the original document and not a copy of it. Employers may only accept original documents and those that appear genuine and relate to the person presenting them. If required to do E-Verify, the employer must get a copy of the documents. However, it is not needed when E-Verify is not; yet, it is acceptable if you wish. Just keep in mind, if you retain such copies, you must follow the same procedure for ALL new hires.
Minors. Persons under 18 who cannot present a document from List B may submit a school record or report card, a clinic, doctor, hospital record, or a daycare or nursery school record.
An employer may accept a receipt in place of a listed document to complete Section 2; however, the employee must bring the official document to update the Form I-9 within 90 days to remain in compliance. An example is an SSC receipt.
Re-verification & Rehires
Many work authorization documents must be renewed on or before their expiration dates. During this verification process, employers must accept any valid documents an employee chooses to present and complete Section 3.
If an employer rehires a terminated employee, they do not need to re-verify again if the rehire is within three years of their termination date. They only need to complete Section 3.
Audits and Corrections
Federal Agencies are empowered with Form I-9 and audit rights. Officials from DHS or the Immigrant and Employee Rights Section (IER) or even the Department of Labor (DOL) can inspect I-9s.
Good-faith Compliance to comply with USCIS regulations. For example, for technical or procedural compliance failures, the government must explain the problem to the employer and allow at least ten business days for correction.
Civil and criminal penalties. Employers may be assessed civil penalties for hiring or continuing to employ unauthorized immigrants, failing to comply with Form I-9 requirements, or not requiring identification.
We do encourage employers to complete annual audits to ensure compliance with their I-9 forms. In your packet, you will find Correcting Form I-9 instructions for how to properly correct errors on your Form I-9. Be sure not to conceal any changes made on the form. Just draw a line through the incorrect information and enter the correct information with your initials and the correction date.