I-9: The Two Page Form that Can Cost You $1,000s
With hints that ICE is ramping up its I-9 compliance enforcement efforts, ICE will likely be issuing Notices of Inspection and subpoenas around the State. Right now is the perfect time to conduct an internal I-9 audit and make sure your business has policies in place to ensure I-9 Employment Eligibility verification compliance.
ICE’s targets are almost always food service and construction. Employers have a maximum of 72 hours (3 business days) to respond to the subpoena and Notice of Inspection. Generally the initial subpoena is for the I-9s of all current employees and for former employees who fall with the I-9 retention period established by law.
With the short amount of time given by ICE for employers to comply with the subpoena. it is imperative that the employer not waive its right to that 72 hour period. Preparing your front of house managers or other front line contacts for the potential of encountering an ICE officer or auditor is a great policy to have in place. Noble & Vrapi, P.A., with offices in Albuquerque, Santa Fe, Las Cruces, and El Paso, has an associate specializing in I-9 compliance and other business immigration matters. Attorney Sarah S. Thomas of Noble & Vrapi notes some best practice tips:
• Establish a uniform, written I-9 compliance policy and train your staff on it.
• Put in place a calendaring system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
• Establish a best practice method for proper cataloging and retention of I-9s, separating former and active employees' I-9s.
• Keep your Forms I-9 organized and separate from general personnel files, this helps to prevent ICE from obtaining any employee documentation that the employer is not legally bound to give to ICE.
ICE does not grant extensions. Call a lawyer the moment you are served. Better yet, have trained legal staff conduct your internal audit now. The money spent on an internal audit is a fraction of the cost of fines for I-9 violations, fees for representation, and lost revenue from a full-blown ICE inspection. See an example of an ICE I-9 violation fine here.
The fines that ICE levies are not only for unauthorized employment. Any deficiency on a Form I-9, from failing to put the employee's name on the top of the second fillable page to using an expired form, all errors are violations, either technical or substantive, and open an employer to liability for fines.
An employer can have a 100% legal-to-employ workforce and still have I-9 violations on every Form I-9. Though it is only a two page form, it can cost employers time, money, and headaches without rock-solid HR policies and well-trained staff handling I-9 employment verification.
The most common Form I-9 errors according the I-9 compliance attorney, Sarah S. Thomas with Noble & Vrapi, P.A.:
1. Too Late: Employees must complete, sign, and date Section 1 of the I-9 form no later than their first day of work, but can’t be asked to fill it out before they’ve accepted a job offer. Employers must complete Section 2 of the form within three business days of the employee’s first day of work. This means that if an employee starts work on a Wednesday, employers have until Saturday to complete Section 2.
2. Incomplete: Errors like failing to provide an acceptable address (no P.O. Boxes), failing to sign, and failing to date the form are common. The employer is responsible for checking to see that Section 1 of the form is accurate and complete.
3. Over-documentation: While it may seem like the employer is being diligent by requesting as many documents as possible to verify that an employee is legally eligible to work in the U.S., the employer cannot ask for anything more than what the form requires. The instructions ask for either one document from “List A” or a combination of one document each from “List B” and “List C.” The documents chosen are up to the employee. The employer cannot demand specific documents. Asking for a particular document or additional documents, beyond what is required by the form, can be considered discrimination.
4. Accepting Scans or Copies of Documents: An employee can send a scan of their social security card and driver’s license to satisfy I-9 requirements. The employer (or employer’s agent, such as HR staff or the hiring manager) must review the original I-9 form and documents in person, and NOT by photo, scan, or video.
5. Form corrections: Any corrections or changes an employer makes to an I-9 must be signed and dated by the employer agent. If corrections to Section 1 are needed, the employee must make them (signing and dating near the correction). Any errors must be crossed out with a single line. The use of White Out or correction fluid on the Form I-9 is a violation.
6. The Spanish Version: The Spanish-language version of the I-9 can only be used by employers and employees in Puerto Rico. The employer can provide the Spanish-language version to Spanish-speaking employees to refer to for guidance, but it cannot be the version actually completed and placed in the employee’s file.
7. Wrong Documents: Make sure you check that the documents the employee presents are on the USCIS lists of acceptable documents (the lists are part of the Form I-9, page 9).
Thankfully, employers can remedy most violations during an internal I-9 audit. Errors that cannot be corrected can still be addressed in an internal audit. A note added to the employee’s file, as part of the internal audit (conducted of the employer’s freewill), noting the error and why it cannot be corrected, goes a long way toward establishing the employer’s good faith effort and diligence in complying with employment eligibility verification laws. When employers have evidence that they review their Forms I-9 for compliance and that they make every effort to correct any errors and maintain their obligations under the law, ICE auditors consider that evidence when reviewing subpoenaed forms and assessing fines.
If any employers have questions, they can contact Attorney Sarah Thomas by clicking here.