Is your company sitting on a massive liability? That was the question immigration attorney Bruce Buchanan posed in his recent Paycor webinar on Form I-9 compliance. Bruce, who is co-author of the I-9 and E-Verify Handbook, gave attendees great insights into the risks facing employers who don’t pay enough attention to their employment eligibility verification obligations. If you think this might mean you, don’t panic. Bruce explained what best practice looks like for businesses as well as listing the most common Form I-9 errors and how to correct them.
For those who don’t have 60 minutes to view the full webinar, we’ve put together these FAQs covering all everything business need to know about I-9 compliance in 2021.
When Were I-9s First Required?
I-9s were created by the passing of IRCA, the Immigration Reform and Control Act, which became law in 1986. This created two primary obligations for employers:
- Employers must not knowingly hire undocumented workers or continue to employ them after learning of their undocumented status
- Employers must verify employment eligibility through the I-9 form. This applies to every employee, full-time and part-time, regardless of citizenship or immigration status, except for those hired before November 7, 1986
What is the Current I-9 Form?
The current I-9 form, coded “10/21/2019”, is available on the U.S. Citizenship and Immigration Services website. The latest form was made mandatory on May 1, 2020. Since its creation in 1986, new I-9 forms tend to be issued every several years. The good news is that there’s no new form required going into 2021, as the current form is only set to expire on October 31, 2022.
Who Needs to Complete the New I-9 Form?
The new form should also be used for new hires and rehires. In fact, rehires may also use Section 3 of the old I-9 form. Existing employees should not complete a new I-9 form as long as they have a valid existing I-9 already on file.
How Has COVID-19 Changed I-9 Compliance?
Back in March 2020, the Department of Homeland Security announced that it would be relaxing its standards for in-person I-9 verification, due to COVID-19. Initially a short-term measure, this has since been extended through the end of 2020 or till 3 days after whenever the National Emergency is terminated, whichever is sooner. Here’s what the changes mean:
- Employers with all employees working remotely due to COVID-19 aren’t required to review employees’ identity and authorization documentation in-person. Note: this only applies to workplaces where all employees are remote. If any employees are present at a work location, no exceptions are permitted. However, if new hires or existing employees are subject to quarantines or lockdowns, the DHS will evaluate on a case-by-case basis
- Employers may inspect Section 2 document remotely (for example over video, fax or email) and retain copies of the documents, within 3 business days of hiring
- Employers should enter “COVID-19” in Section 2 “additional information” field
- When ‘normal operations’ resume, employees who were onboarded remotely must verify their documents in-person. Employers should go back to the Section 2 “additional information” field and add “documents physically examined” with date of inspection
These measures will likely be extended further but there has been no indication of permanent changes.
What if Employees Always Work Remotely?
Verifying remote employees has long been a struggle for employers and it’s only going continue as more businesses switch to a remote-first workforce. Laws differs by state, but generally employers must verify documents in-person, with video conferencing not permitted. Common workarounds include:
- Using a remote company representative, a trusted agent or lawyer
- Allowing two remote employees to verify each other’s documents
- Inviting remote employees for on-site training
What are the Penalties for I-9 Violations?
Penalties for incorrect or missing I-9 forms can be imposed by ICE, the U.S. Immigration and Customs Enforcement agency. The size of penalties depend on various factors including company size and number of violations. The range of possible penalties is regularly increased and now stands at:
- $234 to $2,322 per I-9 form for first offense for substantive violations or uncorrected technical errors
- $1,161 to $2,322 for second and subsequent offenses
- $473 to $4586 for first offenses for each knowingly employed unauthorized workers
- $4,586 to $22,297 for second and subsequent offenses
If employers try to trick ICE, or ignore credible warnings, they risk serious fines. Companies can also be punished for ‘subsequent offenses’ even if their prior punishment wasn’t in the recent past. If it’s the same company, there could be 25 years between a first and second offense. Both the size of fines and the number of inspections have risen fast in previous years. In FY 2019, ICE delivered 6500 Notice of Inspections and reached $14.3 million in fines, penalties and forfeitures. If it wasn’t for the pandemic, this would likely have increased further in FY2020.
What are an Employer’s Responsibilities When Completing an I-9 Form?
The good news is, HR teams aren’t expected to be detectives. You don’t need to put every document under a blacklight. Employers are required to accept original I-9 documents that reasonably appear to be genuine and relate to the individual presenting the document. See more about I-9 compliance here.
What is the Purpose of Section 1 of the I-9 Form?
Section 1 of the I-9 must be completed by the employee on their first day of employment or before. (Paycor Onboarding allows employees to fill their details in online before their first day, to avoid any issues.) This section asks employees if they are a US citizen and whether they are authorized to work. An employee must fill in their:
- Date of Birth
- Social Security number
- Citizenship status
- Work Authorization status
Employers have to ensure that employees sign their name and date it. If any of this is missing, that’s a violation. There’s a place to submit a telephone number and email address, but these are optional. A company representative or employee can act as a translator, but avoid using family members.
What are Common Errors in I-9 Section 1?
Frequently spotted errors in the first section of the I-9 include:
- Failure to complete Section 1
- Losing the I-9 form
- Unchecked box for immigration status
- Lack of proper signature or date
- No full address
- Missing A# number
What is the Purpose of Section 2 of the I-9 Form?
Section 2 is the employer’s responsibility. It must be completed within 3 business days of a hire (i.e., if an employee starts on a Monday, Section 2 must be completed by Thursday). Pro tip: write the company name and ID on the top of every document, in case they get separated. Get familiar with the following lists of accepted verification documents:
- List A (“Documents that establish both identity and employer authorization”)
- List B (“Documents that establish identity”)
- List C (“Documents that establish employment authorization”)
- Examine document(s) that establish the employee’s identity and employment eligibility
- Not accept expired documents (although soon to be expiring documents are OK). A receipt for a new Social Security card is acceptable, but the new card must be shown with 90 days
- Fill in document title and number, issuing authority and expiration date in List A or Lists B and C
- Fill in first date of employment
- Certify examination of document(s) with signature, name of company rep and company information
What are Common Errors in I-9 Section 2?
Frequent mistakes found in I-9 form Section 2 include:
- Failure to complete List A or Lists B and C
- Failure of company representative to sign Section 2
- Failure to complete and sign I-9 form by 3 days after first day of employment
- Over-documentation (e.g., completing List C despite a satisfactory List A). This could trigger an investigation by the Immigrant & Employee Rights team within the Department of Justice as it may show the intent to discriminate
What is the Purpose of Section 3 of the I-9 Form?
Section is 3 is also the responsibility of the employer and relates to re-verification of expired documents. Usually, this section will be left blank. Re-verification is not required for permanent residence cards, green cards, passports or drivers licenses. If re-verification is required and an employer doesn’t do so, then they are knowingly employing an undocumented worker. Documents that need to be re-verified:
- Employment Authorization Document (EAD)
What Should Employers Do if an Employee has used a False ID for I-9 Verification?
If an employee reveals that they do not have authorization to work, their employment must be terminated. However, if they prove that they now have the correct documentation and their status has now been “regularized”, an employer may continue their employment, even if they originally provided false documentation. The Employer should complete a fresh I-9 with the new documents and attach this to the old I-9 form, with a signed and dated explanation.
Beware: if your company has an honesty policy, this should be carried out consistently. If you have previously terminated employees when shown evidence of a lie, you may be forced to do this same in this case. Any inconsistency could imply discrimination.
What are Common Mistakes Employers Make During the I-9 Verification Process?
Here are some major no-nos for employers:
- Don’t ask job applicants to fill out an I-9 until an offer of employment has been made
- Don’t accept photocopied documents
- Don’t tell employee which documents to present (even if you’re just trying to be helpful)
- Do not accept an expired document
Who is Responsible for Correcting Errors on I-9 Forms?
Errors on I-9 forms should be corrected by whoever completed the form. So, Section 1 errors should be fixed by employees. Errors in Section 2 and Section 3 should be fixed by the employer and ideally the same person who received the documents and signed the certification. If they no longer work for your company, it’s easiest to fill out a new I-9 form (unless only a small change is required.)
How Can Employers Correct Mistakes on I-9 Forms?
Whenever there are multiple errors, it’s best to complete a new form and attach it to the old copy. Attach a note explaining why the changes were made.
- If you’re adding missing information, add your initials and the date in a different color pen
- If information has been written in the wrong list (this is common, e.g., a Social Security card is in List B or a driver’s license in List C) draw an arrow to the correct list and add initials and the date, again preferably in different color pen
- If you’ve identified over-documentation, cross out unnecessary information and add initials and the date in a different color pen
Should Employers Retain I-9 Supporting Documentation?
Federal law doesn’t require companies to keep copies of supporting documentation, though several state laws list specific documents which should be copied and kept.
Wherever you are, though, employers should retain supporting documentation. Making copies and keeping them can help your case in the case of an ICE inspection. For instance, you may have forgotten to write down the expiration date of a driver’s license—keeping a copy of the license means this is only a technical, rather than substantive error, and you’d avoid a penalty. Keeping supporting documentation will also help facilitate any internal I-0 audits you conduct.
When keeping documents, store them with I-9 itself, separate from personnel files. If you use E-Verify, you should also attach the Work Authorization document.
How Long Should Employers Retain I-9 Forms?
I-9 forms should be retained for all current employees. For former employees, they must be retained for 1 year from the date of termination or 3 years from the date of the original hire, whichever is later. After the retention period has expired you can purge these documents, but make sure to always get a second opinion, so you’re never put in the position of having to explain to ICE why you accidentally purged the documents they are asking for.
Can ICE Conduct an Inspection Without Notifying an Employer?
As I-9 documents are kept on-site, rather than sent to the government, federal agents can only conduct an inspection in-person or by requiring that you send them evidence through certified mail. This means you’ll always be informed of any inspection and you’ll have at least 3 days to produce documents. In California and Oregon, employers are required to post notices for employees if there is an inspection.
Why Should We Conduct an I-9 Internal Audit?
Internal audits are the best way to determine your liability and uncover errors. This way, you won’t need to worry about an ICE Notice of Inspection. How often you need to complete an audit depends mostly on your company size. If you operate in an industry with high staff turnover, like restaurants or manufacturing, you’ll likely require more regular audits than most.
Who Should Conduct an I-9 Internal Audit?
Ideally, you’ll want to hire an immigration attorney or trained specialist to conduct your audit. If you keep the process in-house, make sure that the employee in charge of auditing your I-9 forms isn’t the same one who filled them out in the first place.
Why Should Companies Have an Immigration Compliance Policy?
Most companies will have a paragraph in their handbook, but this just isn’t enough. Creating an official immigration compliance policy will help you act consistently and put you in the best possible position in the event of an unexpected Notice of Inspection from ICE. If you’re creating an immigration compliance policy, here are the questions you want to be answering:
- Who is in charge of immigration compliance? (This should be a specific name, rather than just “HR”)
- Does your company retain supporting documentation?
- Does your company use E-Verify? (In some states, this may be legally required)
- Who is in charge of your I-9 Form Retention Policy?
- Who should be contacted in the event of an ICE Notice of Inspection?
- What is your policy for working with outside contractors?
- Do you train employer representatives on completing I-9 forms?
- How often do you conduct internal audits?
- Who has access to I-9 records?
- Who is in charge of re-verification procedures for employees with Employment Authorization documents?
- Is everyone aware that there is zero tolerance for the employment of individuals who cannot comply with work authorization rules?
Webinar: I-9 Compliance: Best Practices To Help Leaders Stay Compliant
Author of the I-9 and E-Verify Handbook, Bruce Buchanan is a specialist on employer immigration compliance issues. This comprehensive 60-minute webinar covers everything HR leaders need to know about Form I-9 regulations and best practices, as well as common errors and how to fix them.
Paycor is not a legal, tax, benefit, accounting or investment advisor. All communication from Paycor should be confirmed by your company’s legal, tax, benefit, accounting or investment advisor before making any decisions.
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