As winter sets in, savvy employers should prepare not only for inclement weather, but also for a different kind of ICE: that is, U.S. Immigration and Customs Enforcement. ICE is frequently in the news these days, with 2018 seeing greatly stepped-up enforcement activity. In fact, in fiscal year 2018, ICE opened 6,848 workforce investigations, a more than 400% increase from the prior fiscal year. ICE also initiated 5,981 I-9 audits in 2018, a 439% increase from 2017. So what should employers do? This edition of The Resource focuses on one common target of an ICE investigation – the Form I-9 process – and three of the most common mistakes employers make. At the end of this article, take our ten-question quiz to test your I-9 IQ and ensure you are not caught unprepared.
Small employers often earn a reprieve from federal employment laws until they reach a certain employee headcount. This is not the case with federal immigration laws and Form I-9. All employers, with very limited exceptions, must complete and retain Form I-9, Employment Eligibility Verification, for every person hired for employment in the United States after November 6, 1986. The form itself, which is available on the U.S. Citizenship and Immigration Services website, https://www.uscis.gov/i-9, is relatively simple and comes with detailed instructions. By completing the form, employers are able to verify the identity of their hires and to determine their authorization to work in the United States. Employees provide information such as their name, address, and date of birth and attest to their status as a citizen, noncitizen national, lawful permanent resident, or alien authorized to work in the United States. The employer then examines documents provided by the employee that establish identity and employment authorization. Employers who retain paper Forms I-9 should keep these forms in a file separate from employee personnel files in case of an audit.
In addition to Form I-9, employers have the option to enroll in E-Verify, a system that provides access to federal databases that help employers confirm the employment authorization of new hires. Employers who use E-Verify are alerted to employees who may not be authorized to work in the United States. Employers can enroll in E-Verify for free at https://www.e-verify.gov/. Employers should be aware that certain states require enrollment in E-Verify, and federal contractors may also be required to enroll depending on their contract with the government.
Mistake #1: Failing to Complete Forms I-9 Within the Required Timeframe.
Form I-9 must be completed immediately upon the start of employment, and even minor delays in completing the form are in violation of immigration law requirements. To ensure timely completion, employers should instruct new hires to bring appropriate documentation of their identity and employment authorization status to work when their employment begins.
Form I-9 includes three sections, each of which have different deadlines for completion. Section 1 must be completed and signed by the employee by no later than the first day of employment. The employer is responsible for reviewing Section 1 and ensuring that the employee has fully and properly completed all required information in the correct format.
Section 2 of the form must be completed and signed by the employer or its authorized representative within three business days of the employee’s first day of employment. As part of Section 2, the employer or authorized representative must examine original documents (and in some cases receipts) provided by the new hire from a list of permissible documents that show the individual’s identity and employment authorization (e.g., driver’s license, passport, permanent resident card, employment authorization document, etc.) The individual who signs Section 2 of the form must be the same individual who physically examines the documents.
Section 3 must be completed only where an individual is rehired or where the individual’s employment authorization documentation has expired. If the individual’s employment documentation has expired, the employer must complete Section 3 by no later than the date of expiration. Employers should be aware that certain employees may be eligible to continue working after the expiration period or may be eligible for automatic extension of an expired employment authorization document; employers should consult their employment counsel or contact USCIS for more information.
Mistake #2: Skirting the Rules with Remote Hires.
Form I-9 practices are fairly straightforward where employees report to a physical location of the employer. However, in many cases, employees work remotely, and there is no other company employee conveniently located and able to complete Section 2 in the employee’s presence. In these situations, employers commonly resort to improper methods of completing Form I-9, such as having the new hire simply scan their identity and employment authorization documents for review remotely, viewing the documents through video conference, or delaying completion of the Form I-9 process until a later date when the employee travels to a physical location of the employer.
The correct practice, however, is to designate an authorized representative to fill out Forms I-9 on the employer’s behalf. While the company can choose any person to perform this function, such as a notary public, another employee, or an agent, it must bear in mind that it remains liable for any violations in connection with the form or verification process, including those committed by the authorized representative. Employers therefore should provide clear instructions and carefully review the completed form for any errors or omissions within the required timeframes. If a notary public serves as the authorized representative, the notary should not provide a notary seal on the Form I-9 (the notary is not acting in his/her notarial capacity), but should sign and date the form on the employer’s behalf.
Mistake #3: Failing to Properly Train Staff that Administer I-9s.
In most cases, Form I-9 mistakes can easily be avoided with training and careful attention to detail. While the Form I-9 process is often not the focus of employee onboarding, its importance should not be overlooked, as even simple and seemingly innocuous errors can lead to substantial fines and penalties if the business is audited. In fact, some of the most common errors, such as missing Forms I-9, failing to date and sign a Form I-9, and improper completion dates, may be viewed as substantive rather than technical violations by ICE, with penalties ranging from $110 to $1,100 per violation.
Employers concerned about past Form I-9 practices are encouraged to not only correct practices going forward, but to consider conducting a voluntary self-audit of prior practices in accordance with legal guidelines. Employers interested in self-audits should consult their employment attorneys and the joint guidance prepared by ICE and the Immigration and Employee Rights Section, available at https://www.justice.gov/crt/file/798276/download, to assist them in this process.
Test your knowledge of general I-9 practices with the following employer quiz.
- How long must a Form I-9 be retained for each employee?
- True or False: An employer can specify the type of document an employee must provide to verify their identity.
- How far in advance may a Form I-9 be completed?
- True or False: Unless a business is a federal contractor, it is optional to use E-Verify in North Carolina.
- Do independent contractors need to complete Forms I-9?
- True or False: Once an employer enrolls in E-Verify, the employer must use E-Verify for all new hires.
- How should an employer submit a Form I-9 to USCIS and ICE?
- True or False: Employers can consider a future employment authorization expiration date in determining whether to hire an individual for a particular position.
- How should an employer correct an error in Section 1 of a Form I-9?
- When was Form I-9 last updated?
NOT LEGAL ADVICE: This publication is not to be considered specific legal advice and should not be relied upon in lieu of advice from an attorney. Each client’s situation is unique, and if you have need for legal advice, you should seek advice from an attorney.