I-9 Compliance Tips for Small Businesses

On April 20, 2006, the Department of Homeland Security announced its Comprehensive Immigration Control Strategy for the Interior of the Nation. The second goal of this initiative is to develop robust compliance and enforcement programs in the workplace to deter illegal employment in the United States.
The Immigration and Customs Enforcement Service (ICE) has undergone a strategic shift from imposing administrative penalties and fines to seeking and punishing wise and reckless employers of illegal aliens by filing criminal charges against employers and administrators who complete the employment eligibility forms.

In the past, employers had little fear of arrest and administrative fines were nominal and considered a cost of doing business. In 2003 only 124 fines were issued. Last year, in a single ICE workplace compliance investigation, a settlement and seizure of $ 15 million was negotiated. Just last week, an investigation that began more than a year ago resulted in the arrest of 1,187 people on administrative immigration charges, and seven criminal complaints were filed against managers or former managers for alleged criminal violations in connection with the hiring of illegal aliens. and undocumented. The charges in the criminal complaints allege harboring foreigners for illegal gain and, in two cases, document fraud. The Administration’s budget for fiscal year 2007 calls for an additional 171 officers and $ 41.7 million in new funding to enhance workplace compliance efforts.

You may wonder, what does that have to do with my business? I do not hire illegal aliens. Most employers do not knowingly hire illegal aliens and will comply with the Immigration Reform and Control Act of 1986 (IRCA) and need not worry about criminal charges such as money laundering or harboring an alien for illegal advantage. However, if you are in the hospitality, construction, landscaping or agriculture business, you may be the subject of a workplace compliance inspection. Recklessness charges have been filed for employers who are careless or lax in their work practices. Missing or incomplete I-9 forms can result in fines of between $ 600 and $ 800 per form and missing forms can result in an additional penalty of approximately $ 1500 per form (can be up to $ 10,000) for knowingly employing a ineligible person. (ICE assumes that people without forms are illegal.)

All employers are required to conduct regular audits of their I-9 forms and periodically review the practices of those responsible for hiring and completing paperwork for new hires. Employers are not expected to be document experts, but a person presenting a social security card with the number 000-00-0000 should be suspicious. As an employer, you cannot use photocopies of identity or employment eligibility documents, with the exception of a certified photocopy of a birth certificate. You can make a copy of the documentation provided and keep it with the completed I-9. This can be helpful later when you complete your audit, in case you have filled in incorrect information on the I-9. Note that if you keep copies for one person, you must keep copies for all employees.

You are not allowed to tell an employee what documents to provide for employment eligibility verification. A good practice is to include a copy of the “List of Acceptable Documents” with your offer letter. Instruct the employee to provide either a List A document or a List B document PLUS a List C document on the first day of employment. An employee must prove their eligibility to work within three business days of hiring or risk of termination. If an employee has lost one of their documents, they can accept a receipt for a replacement document (lost, stolen, or destroyed) within the first three business days. An employee has up to 90 days from the first date of employment to present the actual documents. Set up a tickler file for 30-, 60-, and 90-day follow-ups with the employee.

Make sure you have completed the Employer Review and Verification section of the I-9 form within three days of the first day of employment. Your signature and date must be within three days of the employee start date or you could be subject to an administrative penalty. Fines range from $ 100 to $ 1,100 per paperwork violation. It is best if you complete all the hiring paperwork on the same day as the employee. You’ll save time, money, and questions later.

After completing the I-9 forms, you should store them in a location that allows you to produce them within three days of an official request to produce the documents for inspection. If you have a significant number of employees or multiple sites, you may want to consider storing I-9s in a central location alphabetically. You are not required to do this and can, if you wish, store them in the employee’s personnel file. This makes it more difficult to conduct an internal I-9 self-audit or extract documents quickly, but it is allowed.

I-9s must be kept for at least three years from the date of hire or one year after termination, whichever is later. You can discard outdated I-9 forms. If you have any questions, consult an expert, such as an immigration or employment law attorney. If you rehire an employee within three years from the date the form was first completed, you can complete Block B and the signature block in Section 3 of the original form.

If you’ve decided to audit your company’s I-9 forms, here are some suggestions:

1. Create a list of all employees hired since November 6, 1986. The list must contain the employee’s name, social security number, date of hire, and date of termination. Identify former employees whose termination date is outside the required retention period. Those I-9 forms can be discarded. Have someone else check your math before you dismiss any I-9s.

2. Make sure you have an I-9 for each person on your list.

3. Check each I-9 for missing signatures, unchecked status boxes, information entered in the wrong space, missing or incorrect dates.

4. Make any necessary corrections or ask the employee to submit the missing information.

Conducting an audit of your I-9 files and any necessary corrections will help demonstrate good faith compliance with IRCA and can reduce the risk of serious penalties.