The Form I-9 and the requirement for completion of this form seem simple enough. It’s just a form, right? After all, isn’t the form just about assurance that the person you’ve hired isn’t an undocumented worker?
So, what’s the big deal?
Truth is, there are some real risks. Potentially expensive risks. Handling I-9 forms incorrectly can land a company in some very hot water. Here’s how it came about.
The Immigration Reform and Control Act become law in 1986. With it came the requirement that all employers must verify new hires to establish the employee’s identity and eligibility to work in the United States. The I-9 form was established as the document employers would use to capture and certify the information.
I-9 enforcement activity is directed by the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations. Sounds like just another bureaucracy, right?
Think again. In 2009, ICE launched a “revised” strategy that focused on workplace enforcement. According to ICE, for the 2012 fiscal year:
This approach is expected to continue. In fact, ICE requested an “enhancement” of $17.6 million in its 2013 budget to, among other activities, continue focusing on worksite enforcement.
Workforce enforcement usually begins with a Form I-9 Inspection. The process is initiated by serving the employer with a “Notice of Inspection,” requiring the employer to produce its I-9 forms and additional supporting documents within three business days of the notice.
Understand that while ICE’s primary objective is to determine if the employer has knowingly hired or continued to employ undocumented workers; the inspection also determines if the I-9 was completed accurately and in a timely way and is free of paperwork errors.
These administrative errors are classified as either technical or substantive. Technical errors may include failing to capture all the document information. Upon discovery of this category of errors, the employer is given 10 days to make corrections.
Substantive errors occur when an employer fails to promptly prepare an I-9 Form. This could mean an I-9 form was never completed for the employee or it wasn’t completed within three business days of the employee’s commencement of work.
In a recent ruling from the Department of Justice, a small business with no prior history of I-9 violations was penalized $25,525 for substantive errors. The company, Anodizing Industries, Inc. of Los Angeles, was found to have hired individuals who were authorized to work in the United States; however, the company failed to prepare I-9 forms within the three day limit for 26 employees.
Civil penalties for substantive and uncorrected technical violations can run from $110-$1,100. Additionally, ICE uses a scale referred to as an “Enhancement Matrix” that allows for penalties to be increased or decreased as a result of mitigating factors that include business size, good faith, seriousness, and cumulative adjustment. These are in addition to penalties for knowingly hiring and continuing to employee unauthorized workers.
In addition, individuals can face criminal charges for patterns or practices of knowingly hiring or continuing to employ unauthorized aliens — clearly a position in which no organization or individual would want to be.
I-9 forms are not intended to be used as an applicant screening tool or included as a form in the application process, as this could be seen as discriminatory. The rules clearly indicate that Section 1 of the I-9 form can be completed no earlier than the day the employee accepts an offer of employment.
Employers should also take extra care to examine documents that are provided for the purpose of completing the I-9 form. Use of fraudulent documents is common with undocumented workers. Close examination of both the front and back of presented documents may reveal potential fraud. The fraud could be in the form of misspelled words or photos that appear to have been cropped into the document. Document fraud could also involve an individual who is authorized to work but for other reasons (such as warrants for arrest) cannot secure a state-issued picture identification card.
Employers need to understand their authority to decline to accept questionable documents as well as have knowledge of the agencies that can legitimately issue documentation.
It is important to remember the employer’s representative certifying the examination of the documents by their signature on the I-9 form must examine original documents, not copies. The document must “reasonably appear” to be genuine and relate to the person presenting it.
Employers should also understand they cannot specify the document(s) the employee must present for the purpose of completing their I-9 form. Instead, they must allow the employee to choose the document(s) they will provide from the list of documents included in the I-9 form instructions.
It is critical that businesses engage in audits of their I-9 forms, practices, and retention obligations in advance of a visit from enforcement authorities. Employer audits can be self-performed or can be provided by consultants or attorneys. Additionally, staff responsible for the I-9 process should receive annual I-9 training.
ICE continues to make it clear that employer enforcement activity will continue. Employers need to be aware that even the most incidental error can be costly. It may be a simple form, but handling it correctly is essential to avoid fines or worse.
Cyndi Mergele, SPHR, PI is a Senior Manager and leader of the Human Resources Consulting Group at Padgett Stratemann. Cyndi and her team frequently assist clients with I-9 reviews and training. She can be reached at 210.828.6281 or firstname.lastname@example.org.