The Storm Within Form I-9 Immigration Compliance

• By: Staff Editor
• Date: October 14, 2015

The Storm Within Form I-9 Immigration Compliance

The purpose behind maintaining Forms I-9 for your employees goes beyond immigration issues. The Employment Eligibility Verification Form I-9, as it is more elaborately called, helps verify the identity and employment authorization for a new employee in any organization. If you are wondering how much you need to understand about documenting I-9s, or more interestingly the penalties for non-compliance, here’s a little of everything.

The Acts that dictate the details: the Immigration Reform and Control Act (IRCA) and the Immigration and Nationality Act (INA). The body behind Form I-9 inspection and audit: the U.S. Immigration and Customs Enforcement (ICE).

Basic Requirements of Form I-9

 ·         Filing an I-9 is mandatory for every new hire post November 6, 1986.

 ·         Employers cannot knowingly hire or continue to employ an individual who is not authorized to work in the US.

 ·         The physical presence of the employee is required while filing the I-9.

 ·         The employer must verify against original documents, not copies. The documents submitted for verification must be current           and valid. However, a certified copy of birth certificate can also be accepted.

 ·         Photocopies of these documents must be attached to the I-9.

 ·         Temporary or part-time employees are not excluded from filing an I-9, while independent contractors and employees working            outside the US are.

Correcting Form I-9 Mistakes

Ensuring your new hires file an I-9 Form alone doesn’t keep you in the clear. ICE’s audit is going to look for the missing pieces in your I-9 puzzle. Here’s what you can do to correct mistakes on I-9s or replace missing forms:

You can either correct the mistake in an existing form or go ahead and prepare a new one. To correct the existing form, all you need to do is line out the incorrect information, put in the correct facts, add an initial, and close by dating the correction.

For missing forms, make sure you furnish the concerned employee with a new form and allow the employee three business days to provide the required documents for filing the fresh form. In any case, an employer cannot back date a Form I-9.

What Happens After an ICE I-9 Inspection?

You’ve done your part and now come the inspection findings. There are about six ways that can go:

Notice of Inspection Results – This is the good news. The notice is essentially a compliance letter from the ICE.

Notice of Suspect Documents – Moving on to points of concern. This notice indicates that the ICE has identified an employee not authorized to work. It will also emphasize to the employer the possible criminal and civil penalties that can be levied for continuing to employ the individual. However, if there is an error in their findings, it can be rectified by submitting the relevant documents by the employee and the employer.

Notice of Discrepancies – This notice means the ICE could not determine the employee’s work eligibility. On receiving this notice, the employer must provide the employee with a copy of the notice. That leaves the employee with an opportunity to present additional documentation to clarify his employment eligibility with the ICE.

Notice of Technical or Procedural Failures – As the name suggests, this notice indicates technical violations that were identified during the audit/inspection. The employer is given ten business days to do the corrections. Any uncorrected technical and procedural failures, after ten days, will become substantive violations.

Warning Notice – As ominous as it sounds, you are still on redeemable ground. The notice is issued when substantive verification violations are identified, but where circumstances do not merit a monetary penalty. The ICE leaves the employer with the expectation of future compliance, which could translate to another audit soon enough.

Notice of Intent to Fine (NIF) – The NIF is issued for substantive violations, knowingly hire, continuing to employ violating employees and uncorrected technical failures. This notice sets out a chain of events that will keep any employer engaged in a legal tussle certainly worth evading at any cost.

Current Civil Penalties for Form I-9 Noncompliance

The IRCA includes penalties for I-9 noncompliance. According to the I-9 form, "federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form."

If potential imprisonment and debarment from government contracts isn’t on the cards, employers still have to pay up fines ranging between:

 ·         $110 -$1,100 per I-9 for violations of I-9 requirements

 ·         $375 -$3,200 per alien for knowingly hire or continuing to employ

 ·         $3,300 - $11,000 for showing signs of a pattern or practice

Form I-9 Storage and Retention

 ·         All current employees must have a Form I-9 on file.

 ·         Employers are free to store Forms I-9 and relevant document copies according to your organizational requirements – onsite,              offsite, in a storage facility or even electronically.

 ·         Allow restricted access to Forms I-9 for authorized personnel.

 ·         In case of an official request for inspection, Forms I-9 must be available within 3 days.

 ·         Forms I-9 must be retained for 3 years after the date of hiring an employee or 1 year after employment termination, whichever  is later.

By far the most essential element in ensuring Form I-9 compliance is maintaining the same standards and principles for all your new hires, i.e., avoiding employment discrimination based on race, religion or ethnicity. With all these compliance issues mandated by the IRCA and ICE, a unified approach towards ensuring the same poses the biggest challenge for most employers.

Can you stay in line? Do you have the necessary checks and controls in place to avoid noncompliance penalties? Maybe. But the answer needs to be a resounding yes.

Additional Resources

Webinar on I-9 Form Immigration Compliance - Is Your Company Ready for ICE?

Webinar on Immigration Compliance – Common I-9 Violations, Common OSC Violations and Immigration Issues with Employees Providing a New Identity

Webinar on Form I-9 and E-Verify, Getting and Staying Compliant

Webinar on I-9 Compliance: Knowing What to Do and When to Do It

Webinar on How to Survive an I-9 Audit