Minimizing the Risks of a Form I-9 Inspection

By Stephen B. Maule - McMahon Berger, PC.

July 10, 2018

Employers have a continuing obligation to make sure they are compliant with current Form I-9 requirements. Failure to comply can result in significant money penalties being assessed by the Department of Homeland Security, Immigration and Customs Enforcement (ICE), after it conducts an inspection of your Forms I-9. Periodic review of your Forms and the procedures associated with these Forms can help to minimize the risk of being assessed penalties.

First, employers must be aware they are required to have a completed Form I-9 on file for every current employee. In addition, employers are required to maintain a copy of all separated employees’ Forms I-9 for one year after termination, or three years after hire, whichever is longer.

Second, employers should make sure they are using the most current version of Form I-9. U.S. Citizenship and Immigration Services updates the Form periodically and provides free access to the most recent version on its website (www.uscis.gov). The current Form was last updated July 17, 2017.

Third, with respect to timing, new employees should be given the Form I-9 on their first day of employment in order to complete Section 1. Employees also must provide the required documentation of their identity (List B) and authorization to work in the U.S. (List C), or a document that establishes both their identity and employment authorization (List A) within three business days of their first day of employment. Some employers have new employees complete Section 1 in advance of the first day of employment, but may do so only after an offer of employment has been made and accepted and there is a definite employment start date.

Fourth, the employer must complete Section 2 of the Form within the first three days of employment. During this stage of the process, the employer must make sure the employee completely filled out Section 1 and must review the documents presented by the employee. The review requires the employer to make a reasonable and good faith effort to ensure the documents presented are genuine and relate to the employee. While employers are not expected to be experts on the subject, they are required to conduct a sufficiently thorough review to confirm the employee is the individual depicted in the photograph and (as applicable) that the documents presented are included on List A or Lists B and C of the Form. Remember the employer cannot require the employee to present a particular document, but must accept any documents tendered by the employee listed on the Form. Once the review is complete, the employer representative must sign and date Section 2, attesting that they have reviewed the documents presented.

Fifth, although not legally required, we recommend employers retain copies of the identity and authorization documents provided by the employee with the Form I-9. Keeping copies of such documents will assist the employer in the event a question arises concerning the employee’s eligibility to work in the U.S. and proof is needed to show the employer made a good faith effort to comply with the law.

Sixth, employers should designate a company representative at each location to be the individual who conducts the Form I-9 process. Although the Forms can be retained at a central location, actual review of the documents presented by the employee must be conducted in the employee’s presence.

Finally, employers should be aware of the penalties involved for failure to comply with these requirements. Typically, issues concerning Forms I-9 will be uncovered during an inspection conducted by the ICE. Although employers will be given three days to produce copies of the Forms I-9, employers who are unprepared likely will find these three days insufficient to comply with such a request. Penalties for knowingly hiring and continuing to employ individuals who are not authorized to work in the U.S. range from $548 to $4,384 per initial violation. Penalties for paperwork violations, including failing to produce a Form I-9, and uncorrected technical violations, range from $220 to $2,191 per violation. Repeat violators will receive higher fines.

To minimize the risk of a potential violation, employers should have a Form I-9 procedure in place. Specifically, in addition to designating specific individuals to be responsible for completing the process, the designated individuals should be trained periodically not only on the process, but also on conducting audits of existing Forms. Periodic audits of your Forms should occur to ensure they are current and complete. Keep in mind some employees may have presented documentation indicating their authorization to work in the U.S. ends on a certain date, meaning Section 3 of the Form, “Reverification and Rehires,” must be completed prior to expiration of their eligibility, or they will not be able to work. Implementing a reminder system to prevent such occurrences should be part of your organization’s compliance program.

In addition, employers should consider participation in the federal government’s E-Verify, which is an electronic verification system of an employee’s eligibility to work in the U.S. Companies who sign up for E-Verify must meet certain ongoing obligations and are required to sign a Memorandum of Understanding before participating. While voluntary for most private employers, some, such as federal contractors, are required to participate in E-Verify. Those employers who do participate are provided with an affirmative defense to an allegation that they employed an individual who was not authorized to work in the U.S.

The St. Louis employment and immigration attorneys at McMahon Berger have been representing employers across the country in employment and immigration matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.