Employers are required under federal immigration law to verify the employment eligibility of new employees by reviewing acceptable documents provided by the employee—to establish the employee’s identity and work authorization—and then completing an Employment Eligibility Verification, commonly known as Form I-9.
The employer must first provide the Form I-9, which consists of three sections, to the new employee and ensure that the employee correctly fills out and signs the employee section of the form. Then, after inspecting the employee’s documents, an employer representative must complete and sign the employer section. By regulation, this Form I-9 process must be completed by no later than the third business day of employment. The third section of the form must be completed later if the employee is rehired or must be re-verified because his or her work authorization is expiring.
An employer’s failure to ensure that its Form I-9s are properly completed and retained can lead to costly fines in the event of an inspection by U.S. Immigration and Customs Enforcement (ICE). Just in the past few months, hefty fines have been levied against a number of employers for violations, including a Minnesota-based temporary help company that was slapped with a civil penalty of $209,600 in April. ICE inspections sometimes result from complaints made by employees, former employees, labor unions, and competitors, but employers also can be randomly selected for inspection.
To avoid penalties from ICE, employers should be vigilant about their Form I-9 compliance. Here are some tips to keep in mind:
- Make sure that Form I-9s are completed on all new hires. The work eligibility of every new employee, regardless of citizenship or immigration status, must be verified. In addition, depending on the documents presented, some employees have temporary work authorization and must be re-verified through the Form I-9 process when their temporary work authorization expires.
- Take steps to ensure that the company representatives responsible for Form I-9 compliance understand the importance of completing the Form I-9s correctly and have a full grasp of the process. The Form I-9 is only two pages long, but it can be confusing, and completion errors are common. Unfortunately, ICE investigators do not tend to be very forgiving. It is essential that the representatives who handle the company’s Form I-9 function be properly trained.
- Stay on top of Form I-9 compliance at remote worksites. Construction contractors and other employers who hire workers at project sites or remote locations face unique challenges. By regulation, a new employee’s original documents must be inspected in person by the company representative who signs the Form I-9. Employers are not allowed to complete Form I-9s by inspecting faxed or emailed employee documents or by reviewing those documents via Skype, webcam, or other such method. Because the Form I-9 must be completed within three business days, employers are often forced to rely on one or more individuals at the remote site to get the Form I-9s completed. Employers should monitor these situations carefully to make sure that the Form I-9 process is not neglected.
- Consider doing an internal Form I-9 audit. Having a trained human resources professional or independent third-party review the Form I-9s already on file can greatly improve an employer’s position in the event of an ICE inspection. An internal audit gives the employer an opportunity to identify and correct errors in its Form I-9s and to get missing Form I-9s completed before it’s staring down the barrel of ICE’s gun. The employer’s proactive efforts to get its Form I-9s in better shape will be viewed favorably if ICE does come calling.
- Be prepared in the event of an ICE inspection. Typically, the employer will receive only three days advance notice of an inspection, so having a response plan in place is essential. Identify ahead of time the personnel who will communicate with ICE and coordinate the effort to respond to ICE’s inquiries. Being unprepared for an ICE inspection can lead to critical mistakes early and have a serious negative effect on the employer’s effort to avoid or reduce its Form I-9 liability.