United States immigration law requires employers across the country to complete and retain a Form I-9 for every employee they hire, and compliance is mandatory. The I-9 is used to confirm the identity of new workers and confirm that they are American citizens or immigrants authorized to work in the United States.
United States Immigration and Citizenship Services (USCIS) has been carrying out workplace audits and I-9 inspections more regularly in recent years, and the fines for violations can be substantial. In June this year, a staffing company in Minnesota was ordered to pay over $276,000 after neglecting to properly complete I-9 forms for over 100 of its workers.
It is therefore crucial that all employers maintain accurate and organized I-9 forms. Here are some tips for formalizing and improving the process in your company, so that you can respond properly if faced with an audit.
I-9 Compliance Tips
1. Review Your Current Processes
Every employer needs well-documented procedures that must be followed by everyone who completes the I-9 form. A team effort between management, HR, and both in-house counsel and outside immigration attorneys can help ensure that all current state and federal regulations are being followed. Case in point: there is a revised I-9 form required as of Sept. 18, 2017, and failure to use it can incur penalties.
You must fill out an I-9 within three days of a new employee starting work and keep it on file for three years or one year after they leave the company, whichever is longer. When the person originally presents their documentation, examine it to confirm that they reasonably appear to be genuine and applicable to that individual. Examples of acceptable identification include:
- U.S. passport
- Permanent resident card
- Driver’s license
- Social Security card
2. Use E-Verify
In Georgia, this is more of a legal requirement than a tip. Using E-Verify to confirm a job applicant’s eligibility to work in the U.S. is mandatory for employers throughout the state as well as federal contractors. You can enroll directly in E-Verify through the Department of Homeland Security or use a third party.
3. Carry out Voluntary Audits
You should routinely audit some or all of your I-9s. Doing so will help you pinpoint existing problems and correct them before the government carries out an audit of its own. In-house audits can also put your company in a good light if a government investigation ever turns up issues.
4. Look into the Image Program
The ICE Mutual Agreement between Government and Employers (IMAGE) program provides education and training on how to properly detect fake documents, use E-Verify, and understand other aspects of correct identity verification. Be aware that if you do enroll in the program, you essentially give ICE access to your employment records at will.
Managing I-9 compliance is a challenge for employers for a number of reasons. For example:
- Information can be conflicting for legitimate reasons. A common example is a newly married or divorced person who has changed their name on their driver’s license but not yet on their passport.
- Employers can inadvertently be accused of “document abuse” if they ask employees to provide more or different documentation than those on the I-9 list.
- There can be a fine line between being too flexible with documents that look questionable and risking a discrimination claim for being too strict.
- Sometimes errors in government recordkeeping can create a mismatch between, for example, a person’s Social Security number on their card and on government records. Until a matter is cleared up, employers may not legally take adverse action against an employee.
As an employer, you should prepare for the eventuality of an I-9 audit. For assistance in developing and maintaining a system that complies with federal and state regulations, contact the Law Office of Judith Delus, P.A. today. We are thoroughly conversant and experienced in immigration matters that affect you and your business and would be pleased to provide assistance.