Employment Eligibility Verification: Don’t Overlook Form I-9
The government is cracking down. As part of its efforts to control employment by unauthorized workers, the government has been focusing on employers, and has been using audits and inspections to verify the employment eligibility of workers. These efforts are targeted at a wide range of industries, and are not only being directed at companies that customarily hire lower-skilled labor. This means that any company, even yours, could receive an unwelcome and unexpected visit from an officer or agent of U.S. immigration or labor authorities. What should you do to be prepared?
Employer Obligations
It is important for you to know that all U.S. employers, regardless of size, are obligated to verify the identity and employment eligibility of every employee. This includes owners, partners, managers, full-time, part-time and any other kind of employee—regardless of citizenship or immigration status. There are no exempt employers and no employee is exempt from this requirement. This obligation is met by the careful completion of the Form I-9, the Employment Eligibility Verification form.
The Form I-9
The I-9 must be filled in and signed within three days of an employee’s start date. The form must be complete; that is, all of the data fields must be filled in, the form must be signed and dated by both the employer and the employee and the employer must actually see the birth certificate, social security card, passport, alien registration card or other document(s) which show the right to work.
I-9 files should be kept separate from general personnel files. It should be the responsibility of one person in the office to maintain the I-9. The I-9’s may need to be updated from time to time, as cards or other documents expire. Employers must retain completed Form I-9s for three years after the date of hire or one year after the date of employment ends, which ever is later.
Filling Out the Form I-9
Section 1 of the Form must be completed by the Employee no later than three days from the start date. If Section 1 is completed by someone other than an employee, a Prepared/Translator Certification must also be completed.
Section 2 must be completed by the Employer. The employer must complete section 2 with information about the documents provided by the employee to confirm both his/her identity and employment authorization, and must do so within three days of the date employment begins. Employers must be familiar with the various documents which are considered acceptable for the I-9.
Section 3 must be completed by the Employer when updating or verifying a Form I-9.
Failing to Complete the Form I-9
There are two kinds of penalties for I-9 violations. The first is a penalty for knowingly hiring an unauthorized worker. The civil penalty for hiring an unauthorized aliens, or continuing to employ aliens knowing that they are or have become unauthorized to work in the U.S., starts at not less than $375 or more than $3,200 for each unauthorized alien—for the first offense. After that, the fines go up substantially. The second is a penalty for not having a completed Form I-9, or for having an incomplete Form I-9. For these kinds of violations—referred to as paperwork violations—the penalties can result in civil penalties of between $110 and $1,100 for each violation.
Avoiding I-9 Violations
It is important for all employers to know about and to follow the rules relating to employment eligibility verification. Even innocent mistakes can lead to big fines. Immigration and Customs Enforcement, referred to as ICE, has been conducting regular I-9 audits of businesses all over the country, giving employer’s only three days notice of inspection. These audits require employers to produce I-9’s for every employee, whether U.S. or foreign born. In the fiscal year ending September 30, 2010, ICE conducted over 2,200 I-9 audits, assessing millions of dollars in fines for paperwork violations and charging 180 owners, employers, managers and/or supervisors with criminal violations of the law.
What Can You Do?
If you are contacted by ICE, it is important that you notify your attorney and that you consult with your attorney on how to prepare for the ICE audit. Do not back date forms. Before you are contacted by ICE, it is important that you self-audit, to confirm 1) that you are complying with I-9 requirements, 2) that you have a complete, signed, dated I-9 for each employee and 3) that you have a system in place for ensuring best practices relating to employment eligibility verification and compliance.
The Form I-9 and accompanying instructions can be found at www.uscis.gov. We can help. If you have questions, or if you would like our office to help you to set up and maintain a system which complies with federal law, please contact the Law Office of Matthew I. Hirsch by telephone at 610.964.6100, or by e-mail at info@hirschlaw1.com.
