Form I-9: Is Your Company Compliant or Complicit?

November 9 2017 | by Kristi Weierbach, Ph.D., SPHR, SHRM-SCP, FPC

If you have employees, you should be very familiar with Form I-9. Also known as the Employment Eligibility Verification form, Form I-9 requires that every employee hired after Nov. 6, 1986, is eligible and legally authorized to work in the U.S., including required identification for both U.S. citizens and noncitizens. While most employers fill out the forms, I-9 accuracy is critical, and the failure to pay attention to detail is what gets employers in hot water.

ICE ICE Baby

The Immigration and Customs Enforcement (ICE) recently made it known that they are stepping up efforts to identify not only illegal immigrants in the workplace but the businesses who knowingly hire them. As an employer, this means the chances of your business being the subject of an ICE initiated I-9 audit has increased. If you receive a Notice of Inspection from ICE, you have three days to provide them with the Form I-9s of both current and recently terminated employees for review. Additionally, you will be required to provide quarterly wage and hour reports, payroll records, and other business information.

Let’s take a peek at some of the most common I-9 mistakes.

It’s easy for I-9s to fall in between the cracks of the many other responsibilities an HR department is charged with. Plus, it’s one of those situations that people don’t think about until they’ve received the dreaded audit notice.

Now is the perfect time to dust off your processes and get things in order. Employers are advised to establish and maintain processes that keep them compliant and prevent exposure to costly violations.

1. Inaccurate and/or Missing Forms

As we stated, typically with I-9s the devil is in the details including incorrect dates, unsigned forms, unchecked boxes, or not recording the right identification document codes. Any of these items will result in an incomplete, out of compliance form. Even worse than an incomplete form, is the lack of any employee forms. It’s important to ensure that I-9s are not only part of your onboarding process, but that they are also properly maintained. When an employee leaves the company, the employer is required to retain their I-9 form for a period of up to three years from the date of hire OR one year after the employee’s last day, whichever is longer. During an audit, ICE will request forms for all recently terminated employees.

2. Not Following the Three-Day Rule

ICE clearly explains that I-9 forms must be completed within three business days of the employee’s first day of work. There are responsibilities for both employee and employer to fulfill within the three days. For the employee, they must fully complete section one and provide appropriate identification documents, and the employer must then verify such documents.

3. Document Verification

Some employees will have work authorizations, including green cards, which have expiration dates. These will be considered I-9 supporting documentation. It’s the responsibility of the employer to monitor expiration dates and reverify documentation prior to expiration. If employees are discovered working on expired authorizations, the employer will be held responsible.

What’s the Big Deal?

The I-9 might look like a simple piece of paper, but it can pack quite a punch. Employers found out of compliance with ICE are at risk for significant penalties and fines, potentially, over $1,000 per violation. More problematic is a company found to have knowingly employed ineligible employees. In those cases, an employer may face fines up to $16,000 per violation.

Even with the best of intentions, it’s easy to make some missteps in securing proper I-9 documentation for your employees. We’ve touched on just some of the most common issues, for additional insight into how to prepare for an I-9 audit, correcting poor I-9 practices, and understanding your responsibilities when it comes to employment verification watch our on-demand Year End HR & Payroll event. Preparedness is the best defense against an I-9 audit.

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