June 28, 2013
While completing an I-9 form may seem straightforward, it can quickly get complicated. Even employers with the best of intentions may find themselves trying to work through situations they never anticipated.
When California manufacturer Alyn Industries ran into problems with improperly completed I-9 forms, it turned out to be an expensive mistake. In November 2009 the U.S. Immigration and Customs Enforcement’s (ICE) Office of Homeland Security Investigations announced a $63,767 fine for violations of the Immigration and Nationality Act that related to the company’s obligation to verify the employment eligibility of its workers. (At trial, the fine was reduced to $43,000.)
“ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment,” said Department of Homeland Security Assistant Secretary for ICE John Morton in the news release.
Alyn’s troubles show how ICE has been, and will increase, cracking down on employers who make mistakes with their employment verification forms. To ensure compliance and avoid stress, business disruption, and costly fines, companies need to ensure they have rigorous processes in place to verify employment eligibility.
There has been much talk about immigration reform. In addition to President Obama’s call for substantial reform, bipartisan support also has increased significantly following the November elections, with key Republicans, including Sens. Marco Rubio and John McCain, endorsing a significant immigration overhaul. All the immigration plans being discussed address reform of the employment verification system and increased workplace enforcement.
Employers should be familiar with the I-9, or Employment Eligibility Verification, form since some variation of it has been mandatory since 1986. The I-9 form is used by every employer to verify the identity and employment eligibility of all new employees to prove they are American citizens, U.S. nationals, or immigrants authorized to work in the U.S.
An I-9 form must be completed within three days after an employee begins work. A worker must present appropriate documentation, and the employer must examine the documents to decide if they reasonably appear to be genuine and relate to the individual.
I-9 forms must be kept on file for all employees while they are employed. They must be kept at least three years, or one year after employment ends, whichever is longer. Employers keep the forms as part of their own records, but they must make them available for inspection by government officials from the U.S. Department of Homeland Security, Labor Department, U.S. Department of Justice, or other authorized agencies.
Employees can present a single document to prove both identity and employment eligibility, such as a U.S. passport or permanent resident card, or separate documents that establish identity, such as a driver’s license, and employment eligibility, such as a Social Security card. The list of acceptable documents appears on each I-9 form.
Employers can use several online services to quickly ensure that the information employees provide for their I-9 forms matches government records. These programs include E-Verify (www.everify.com), the Social Security Number Verification Service (www.ssa.gov/employer/ssnv.htm), and the Records and Information from DMVs for E-Verify (RIDE) program (www.aamva.org/RIDE/). The federal government has been strongly encouraging companies to use E-Verify, and some states require it.
While completing an I-9 form may seem straightforward enough, it can quickly get complicated. Even employers with the best of intentions and well-trained employees may find themselves trying to work through situations they never anticipated.
Some errors result from simple typos, misspellings, or information unintentionally left blank. In some cases, employees may legitimately have documents with different last names. For example, a newly married or divorced employee may have changed his or her name on a driver’s license but not a Social Security card yet.
Discrimination, whether deliberate or inadvertent, is another challenge employers need to consider. It may seem easiest to hire only “people who look like Americans” and avoid any concern with employment eligibility, but that kind of discrimination is illegal. Companies must treat immigrants who are in this country legally and eligible to work just as they would U.S. citizens. Employers also must be sure they don’t overcompensate and commit “document abuse,” or ask employees to provide more or different documents than those on the approved I-9 list.
Determining whether documents “reasonably appear to be genuine” is another problematic area. The federal government insists that it doesn’t expect employers to become experts on the differences between authentic and forged documents, or documents issued to someone other than the employee. But many companies may feel they are walking a fine line between being too flexible if documents look questionable and risking discrimination claims if they reject documents that an employee presents.
Companies can refer to the M-274 Handbook for Employers, published by U.S. Citizenship and Immigration Services (USCIS) and available at www.uscis.gov/files/form/m-274.pdf. The publication shows a comprehensive list of acceptable documents and includes illustrations of what the documents should look like.
Essentially, employers should prepare themselves for the eventuality of an I-9 audit, because ICE has dramatically increased the number of audits it performs. According to a recent Associated Press report, audits of employer forms increased from 250 in fiscal year 2007 to more than 3,000 in 2012. The amount of fines levied by the federal government for erroneous I-9s has also exploded, from $1 million in 2009 to nearly $13 million in 2012.
Employers also can run into complications when the Social Security number or driver’s license number an employee submits doesn’t match government records. Frequently the problems lie with the government’s own recordkeeping, but employers still need to take specific actions to give employees a chance to correct any discrepancies. Until a matter has been resolved, it’s illegal to take immediate adverse action against an employee when a mismatch is flagged.
Employers should take steps to formalize and improve their processes for completing I-9 forms. This will help them manage the forms smoothly and efficiently and will allow for a quicker response if faced with an audit. Employers should:
Immigration reform remains a hot-button issue, but it has gained increasing bipartisan support. Additionally, the federal government is targeting employers who hire workers illegally. By anticipating and managing issues with I-9 forms, companies can ward off potential problems and better defend their processes if they receive a notice of inspection or otherwise draw the attention of ICE.
U.S. Citizenship and Immigration Services released its latest I-9 form on March 8. It is now two pages, although in reality it isn’t much longer than the previous version. Regardless, the form includes new fields in various sections: employer information and attestation, employer review and verification, and reverification and rehires.
The new form is available on USCIS’s website at www.uscis.gov/files/form/i-9.pdf. As of May 7, 2013, all companies should be using the latest form for new hires or reverifications to avoid civil penalties. However, companies need not ask employees who previously completed I-9 forms properly to complete the revised form.
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