What Every Employer Needs to Know About I-9s

What Every Employer Needs to Know About I-9s

I-9 retentionDoes the word ICE send chills down your spine?  If you’re an employer and you read the news, it very well might!

ICE stands for Immigration Customs Enforcement and these are the folks that enforce the U.S. immigration law — and that audit employers’ I-9 files to ensure compliance.

  • In 2011, ICE fined employers over $9 million for worksite violations.
  • Civil fines for paperwork violations can range from $110 – $1,110 per I-9 error!  

Is your business at risk of being fined?

The government is increasing efforts to punish companies for I-9 errors:

The current administration has increased enforcement efforts on the employer side by auditing employers’ I-9 files.  It’s easy to see how huge fines can add up quickly, even when businesses are hiring employees who have the legal right to work in the United States.

In 2011, ICE issued over 330 orders against employers for worksite violations totaling more than $9 million in fines.  In comparison, in 2008 fines only totaled $675,000.

ICE has alerted the business community of its intention to issue at least 3,000 Notices of I-9 Inspections in 2012!

Every employee must complete an I-9:

Everyone hired by a business must complete an I-9.

It doesn’t matter whether you are a small business, with just one employee.  It doesn’t matter if you hire someone to work for you for just one day.  If you hire anyone, to work for any amount of time, you must have them complete an I-9 form.

  • The employee has to complete their portion of the form by their first day of work.
  • You have to complete your portion of the form, verifying their right to work in the U.S., by the end of the third business day, regardless of whether or not the employee is scheduled to work in that time period.
  • If your employee cannot provide the required identification documents for their I-9 in that time period, you may terminate them for cause.

As the employer, you must ensure that the form is completed correctly in order to avoid a fine.  If you spot a mistake on the employee’s form, you may correct it, or help the employee correct it by drawing a line through the information and re-entering it correctly.  Be sure to have the employee initial and date the correction and you must also initial and date it.

Keep in mind that the I-9 form cannot be completed until an offer of employment has been made and the offer has been accepted by the employee.  You cannot use it as a screening tool to ensure that you are offering work to job seekers with the right to work in the U.S.

The right and wrong way to obtain ID for an employee’s I-9:

It’s surprising to us how many job seekers are unfamiliar with the I-9 form and the documents they need to bring in order to complete it.  Prospective employees often ask us what they should bring in.

Telling an employee which specific identification documents they need to provide for their I-9 is not acceptable, and could result in an employer being charged with discrimination.

For instance, if you required someone to provide their birth certificate, it could result in a charge that you’re discriminating against a person’s place of national origin.  Although the two most common documents produced for I-9s are a social security card and drivers license, even stating this fact could imply discrimination.  For example, a sight impaired employee probably can’t drive, so suggesting that someone bring a drivers license could result in a discrimination charge.

The back of the I-9 form lists the acceptable documents.  To be safe, simply refer your new employees to the list and tell them to bring in the required number of documents from the list.

Can you accept digital copies of ID documentation for I-9s?

Technology has provided us the ability to interview and hire employees we have never physically met, but may have interviewed via phone or webcam.  Can you have them scan in their documents and email them, or hold them up to the webcam for your inspection?

The answer to that is no.

You are required to physically inspect the documents to ensure that they are valid.  You will need to either have the documents mailed to you, or you can utilize an authorized agent, such as a notary public, to act in your place.  Just remember, you are the one that is liable for compliance, if you are relying on a third party to verify the validity of the documents presented.

What if an employee’s ID documents for their I-9 are expired?

You, as the employer, must verify that the documents presented comply with the requirements on the list.  You cannot accept a document that has expired.

Ironically, there are some exceptions to this for documents that were issued by the Immigration and Naturalization Service, but in general, expiration dates matter.  Identification without expiration dates, such as school ID cards, are assumed to expire at the end of the school year for which they are issued.

In another bit of irony, the current version of the I-9 form itself expired 8/31/12.  The USCIS does not have a new version available at this time, and is instructing employers to continue to use the expired form past its expiration date.  Just don’t accept any expired documents along with it!

Another complicated one is drivers licenses.  If it’s been revoked, but is unexpired, it’s still valid ID.  However, if the revocation invalidates the license, it is not acceptable.

Social Security cards have their own rules:

  • If a Social Security card has been laminated, it voids it and cannot be accepted as ID.
  • The cards do not have to be signed in order to be valid.
  • If one says “For Social Security and Tax Purposes Only” it is still valid for employment.  (In fact, there are fifty different versions of the Social Security Card that are all valid for employment!)
  • A few that are not valid state “not valid for employment” or “valid for work only with INS or DHS authorization.”

As with all ID presented, read the card carefully before accepting it.

What to do if an employee’s ID document looks funny:

If you take a look at someone’s ID, and it just looks funny to you, or doesn’t look like the employee to you, you’re not expected to be a document expert.  It’s okay to reject the document, or to contact the ICE experts for help.  You can reach them toll free at 1-866-DHS-2ICE.

Can you make photocopies of employee’s ID docs?

We make photocopies of the documents that are presented to us for ID.  This is perfectly acceptable, but only if this is done for every employee.

You cannot make copies of some forms that you might be questioning or unfamiliar with, but not make copies of others.  You’re all in, or all out.

The rules of I-9 retention:

You are required to keep the original I-9s for three years from the date of hire, or one year from the date of termination, whichever is later.

You are allowed to have an electronic I-9 form, as long as it looks the same and contains the exact data elements and language as the form on the USCIS’s website.  See their website for instructions on how to utilize an electronic version.

Periodically audit your I-9s:

Most employment attorneys will recommend that you periodically perform your own I-9 audits.  You can either utilize an outside expert to do this, or do it yourself.  It’s a great way to catch errors before an ICE agent finds them for you, and also a good way to train your supervisors or staff on how to correctly complete  and store I-9 forms.

Before you get overly paranoid, though, don’t get too carried away with your own enforcement tactics at your workplace.  If you become too vigilant in your enforcement, and end up with a disparate impact claim, you may run afoul of anti-discrimination and anti-retaliation laws.

The wrap-up:

Employers with the best of intentions want to do the right thing, which means hiring employees with the right to work in the United States, and complete the paperwork correctly.  There’s no doubt that this can be extremely complex, as the Handbook for Employers for completing the one page I-9 form is 71 pages long!

For your benefit and protection, it’s best to order your own copy of the handbook from the U.S. Citizenship and Immigration Services website, and keep it as a handy reference.