Employment Law

How to Avoid Common Form I-9 Violations

Fines for knowingly hiring or continuing to employ unauthorized workers can reach as much as $16,000 per violation, while substantive and uncorrected technical violations can be as much as $1,100 per violation. Here are 4 important areas employers need to understand in order to avoid common Form I-9 violations.I-9

  1. Improper destruction of documents. Form I-9 must be retained for 3 years after the date of hire or 1 year after the date of termination, whichever is later. Don’t make the mistake that some employers have made and unilaterally destroy I-9 documents after three years have passed. If you’ve had employees leave your company after 2 years of employment, you may have to retain their Forms I-9 for a few months longer.
  2. Improper storage of documents. Though there is no legal requirement that your Forms I-9 be stored separately from the employment file, it’s a good idea. As noted above, you will have only 3 business days after receipt of a Notice of Inspection from the U.S. Immigration and Customs Enforcement (ICE) to gather up necessary documentation. If your documents are inaccessible and you’re unable to produce them in a timely manner, this sends up red flags to the auditors before their inspection has even begun.
    In addition, Form I-9 could contain sensitive information about your employee—for example, proof of national origin—that is best kept separate from performance and disciplinary documentation. Finally, when the government comes knocking on your door to inspect your documents, why give them more than they’ve requested? If you hand over an entire personnel file and the auditors see something else they don’t like, you may find yourself hosting a few more government agencies in the weeks to come.
  3. Accepting expired documents.New hires must be allowed to select documents of their choice from the lists accompanying Form I-9. However, none of these documents can be expired, even those from List B that are only used to establish identity. Pay special attention to documents such as school ID cards, which may use stickers to indicate an expiration date.
  4. Incorrectly altered documents. If you do make a mistake or find an error on a Form I-9, there is a proper way to make the correction. If the correction is minor—a misspelling or transposed digit, for example—simply draw a line through the old information, then write the new information above in a different ink color. Never erase, use white-out, or otherwise render the initial information unreadable. Date and initial these change with the current date—never backdate any corrections.
    If significant changes must be made, simply complete a second Form I-9 and attach it, with documentation explaining the reasons for revision, to the original form. There is no need to submit corrected documentation to the government; simply keep it with the employee’s original Form I-9.

Bottom Line

Above all, remember that any actions you take with regard to your employment eligibility verification, as with any documentation, should be undertaken fairly and consistently. If you choose to review your Forms I-9 for inconsistencies, don’t selectively audit certain employees based on race, ethnicity, perceived national origin, or other protected characteristics. Either perform a review of a random sample, or review all forms with the same level of scrutiny. Otherwise you could earn a call from the EEOC for a discrimination charge earned in the attempt to avoid conflict with ICE.

What should you expect during an ICE audit? Find out in Holly’s related article.

Get all your immigration questions answered when you attend: Form I-9 Recordkeeping: How to Complete, Re-Verify, Store, and Destroy Paper and Electronic Files in Compliance with Federal Law, on Thursday, January 25, 2018. Click here, to learn more, or to register today!

For California Employers, consider attending: California Immigration and I-9 Compliance Update: New AB 450 Obligations in Effect January 1, 2018, on Tuesday, January 16, 2018. Click here, to learn more.

 

HollyHolly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.

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Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic.