By Julie Henderson
“I‐9 Compliance” is a term commonly used to explain the employer’s requirement to verify an individual’s employment eligibility in the United States.
Businesses need to make certain they avoid I-9 errors and are in full I-9 compliance, or they could pay dearly in hefty fines to ICE. Penalties for technical violations, which include failing to produce a Form I-9, range from $110 to $1,100 per violation.
I-9 errors are among the worst possible paperwork errors for employers today. An analysis of nearly 800 audit cases ICE completed since October 2010 shows that roughly half of the companies fined were not specifically penalized for hiring illegal immigrants, but for problems with the employment verification paperwork they are required to fill out for new hires. With the government stepping up its enforcement of I‐9 compliance, it is not advisable for businesses to take the chance that their employment eligibility verification paperwork is inaccurate and non-compliant.
#1: Understand your state’s laws concerning I-9.
Each state has their own laws governing I-9 and E-Verify requirements. Some states only require businesses of certain sizes to comply, while other states require every single employer to comply. This can get confusing, but failing to keep up with your state’s laws is no excuse during an ICE audit.
Tennessee: As of January 1, 2017, private employers with 50 or more employees under the same FEIN are required to use the federal E-Verify employment verification process. This applies to employees working in or outside the state of Tennessee. (Source: tn.gov)
As a contrast, Mississippi’s law is quite different.
Mississippi: all employers must participate. Penalties for non-compliance include the cancellation of public contracts, ineligibility for public contracts for up to three years, and a private employer may have its business license revoked for up to one year. In addition, an “employer” is defined as a person or business who is required to issue a Form W-2 or Form 1099 to any employed or contracted individual in Mississippi, meaning that employers are required to verify independent contractors as well as traditional employees.
It’s critical for employers to understand their individual state’s I-9 and E-Verify laws, and keep up with changing requirements.
#2: Make certain you are using the most updated version of the form.
The I-9 form gets a refresh every so often, and it’s the employer’s responsibility to make certain their form is not outdated. Failing to do so can have big consequences during an audit. The latest version of the form is required as of January 22, 2017, which is version 11/14/2016 N.
Businesses must make certain they are using the correct version of the I-9 form, or be subject to fines for non-compliance during an audit. Check your forms often, and change them out as soon as new ones become available.
#3: Strictly adhere to signing timelines.
Each newly hired employee should complete and sign Section 1 of the I-9 form no later than the first day of employment. “First day of employment” refers to the first day of work in exchange for pay or other remuneration. Employers or their authorized representative must complete Section 2 by physically examining evidence of identity and employment authorization within 3 business days of the employee’s first day of employment. (Source: uscis.gov)
This is a big deal, and where many businesses get into trouble. Forgetting to get the signature, which is easy to do because of all the other new hire paperwork that is required, can lead to non-compliance, even if the employee is authorized to work in the U.S!
Taylor Lightning Company. None of their roughly 35 workers were illegal immigrants. However, some of their employees had not filled out i-9s, and some of the forms that were completed were missing information or weren’t dated within three days of a new employee’s hire. Immigration and Customs Enforcement officials mandated that because of these errors on the workers’ employment eligibility forms the company would still have to pay a $13,300 fine.
#4: Conduct internal audits consistently.
Smart employers don’t wait until they are audited to gather information and identify holes in their processes. Annual audits of your I-9 processes with assistance from your employment attorney are just good business. Closely review a random sampling of I-9s, looking for errors, dates that don’t match, or outdated forms. Put together a game plan for handling any process weaknesses moving forward.
#5: Correct any errors or omissions as soon as possible.
Mistakes happen, especially with processes as complex and ever-changing as I-9 and E-Verify. If your audits reveal errors, document your efforts to correct these as thoroughly as possible, under the watch of your attorney. Transparency is key to correcting errors and omissions in an efficient, compliant manner. In addition, put measures in place that minimize these from happening again.
#6: Follow form storage and retention policies.
Storing I-9 forms properly can keep employers out of hot water during audits. Whether on or off-site, it is required that employers store every form for a period, even if the employee no longer works there.
The good news is they can eventually be thrown out. The rule is this: Forms must be kept for either three years after the date of hire, or one year after the date the person leaves employment, whichever is longer.
EXAMPLE: Paul leaves his job after eighteen months. Adding a year to that would be 2.5 years. The employer must keep Paul’s I-9 for 3 years because that is the longer time. Clear as mud, right?
Storage and retention rules are one of the main reasons employers choose an automated system to handle the I-9 procedure.
With the current hiring climate and the huge fines that loom, it’s essential that businesses perform a review of their current I-9 and E-Verify practices. Compliant standards must be consistently maintained. Having stringent measures in place can help the business avoid costly I-9 errors and huge fines.
The information contained in the article is not legal advice and is for informational and/or educational purposes only.