Employers are obligated to take certain steps to determine whether their employees are legally authorized to work in the United States. Since the early 50s, federal law has prohibited employers from employing foreign workers unless they hold a status that authorizes them to work in the United States. However, it was not until the Immigration Reform and Control Act of 1986 that employers were provided a mechanism to meet this mandate by requiring all employers to complete a Form I-9 to verify the identity and work authorization of every employee hired, regardless of citizenship. Since even minor errors and mistakes on an employer’s Form I-9s can result in fines, which can add up quickly, now is the time to conduct an internal audit to ensure that all forms have been completed and retained properly.
The I-9 Form must be completed within three days of the first day of employment. The employee completes Section 1 on the first day of employment; the employer must complete Section 2 by the end of the third day, including a physical inspection of the documents provided by the employee to verify employment eligibility. In March 2020, DHS announced flexibility in requiring physical examination of documents for employers operating remotely, with physical examination of the documents to be conducted once in-person operations resume. This has since been extended until August 31, 2021. However, while this flexibility remains, employers who took advantage of the remote inspection provisions who are now resuming in-person operations should immediately begin inspecting documents in person for those employees who were hired while the employer was operating remotely and for all new hires.
Form I-9s should be kept apart from other personnel files, not only for convenience in the event of an audit (ICE is only required to give three days’ notice) but also to avoid the appearance that employment decisions were made using such information and a claim of discrimination. This also allows you to easily conduct a self-audit since all the forms will be in one place. Form I-9s should not be retained longer than required – we recommend keeping all forms together in a binder, with a separate section for employees who are no longer with the company. That way, every six months or so you can review the binder and remove any I-9 forms that are no longer required to be maintained.
Penalties can be enforced for Form I-9 violations, employment violations, document fraud, or discrimination in the form of fines and penalties. Unless the employer self-audits, since the Form I-9 is not filed with any agency, mistakes typically go undetected until an employer receives notice of an audit from ICE or DHS. ICE and DHS do not look favorably upon corrections made after they sent notice of an audit, so the time to correct any errors, omissions, or issues arising from use of an outdated form is during a self-audit. That way, if you are audited, DHS and ICE will see that any issues have been proactively corrected and are likely to levy lesser fines, if any.
If you have questions about your company’s compliance with the Form I-9 requirements or would like assistance with an internal audit and ensuring that your corrections are compliant with DHS guidance, please give us a call at (410) 522-1020.