By Holly Jones, JD
The I-9 form is one of the most crucial parts of legal compliance in hiring. It’s important that your Human Resources (HR) staff is trained to do it right, because one wrong step can result in hefty fines. Here with some of the ins and outs of I-9s is an analysis by BLR® Senior Legal Editor Holly Jones, JD.
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The I-9 may be the most treacherous two pages in all of employment compliance. How is it that something seemingly so innocent can create so many headaches (and fines) for well-meaning employers?
Well, let’s see—there’s the incredibly tight deadline for completion, the form’s unique requirement that both employer and employee complete portions, and, oh, don’t forget the part where the thing is then stashed away in a digital or physical file cabinet—perhaps for years—with no further oversight or review. This leaves employers vulnerable to continue repeating mistakes they don’t realize they’re making.
Fortunately, U.S. Citizenship and Immigration Services (USCIS) is in the process of revising the form to make it a little, well, “smarter,” but until the new form is available, there’s a lot of finger-crossing and hoping for the best involved.
You Review, I Sign, We Attest?
One issue with the current I-9 process is that it hasn’t evolved with the needs of the modern workplace—for example, the trend toward the distributed workforce. Workers may be able to perform the entirety of their jobs from the comfort of home or coffee shop, yet the inspection of their employment verification documents must still be performed in person with physical driver’s licenses, birth certificates, and other documents.
When it is geographically impossible or impractical for the employer’s usual hiring personnel to inspect these documents, the employer may assign an agent—such as a notary public—to do so on the employer’s behalf. The key, however, is that the representative who reviews the documents must also complete the related section—Section 2—of Form I-9.
The current revision of the USCIS Handbook for Employers clearly addresses this practice in Question 38 of the FAQ.
Specifically:
38. Q. As an employer, do I have to fill out all the I-9 forms myself?
A. No. You may designate someone to fill out I-9 forms for you, such as a personnel officer, foreman, agent, or anyone else acting on your behalf, such as a notary public. Please note that if someone else fills out Form I-9 on your behalf, he or she must carry out full Form I-9 responsibilities. However, you are still liable for any violations in connection with the form or the verification process.
For example, it is not acceptable for a notary public to view employment authorization and identity documents but leave Section 2 for you to complete. The person who views an employee’s employment authorization documents should also complete and sign Section 2 on your behalf.
Those instructions are pretty clear today. Yet, several years ago, one employer, presumably lacking the clarity of this FAQ, got the process a little wrong. Then when Immigration and Customs Enforcement (ICE) later audited the I-9 forms that were completed incorrectly, the fines were anything but little.
Jones discusses what happened in this I-9 case in tomorrow’s Advisor, along with the bottom line for employers.