Under federal immigration law, employers are required to verify the employment eligibility of their employees, and this includes completing a Form I-9. However, this process can be tedious and confusing to employers, and if it’s done incorrectly, it could result in large fines. In fact, on August 1, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Justice (DOJ) increased the penalty amounts for Form I-9 violations. The process of completing a Form I-9 involves the following steps: 
- First, the employer provides the Form I-9 to the new employee, who must then correctly fill out and sign Section 1 of the form.
- Second, the employer must then review and verify the employee’s documents that establish the employee’s identity and work authorization.
- Third, the employer must then correctly complete and sign Section 2 of the Form I-9 within three business days of the new employee’s start of employment.
- Finally, the employer is required to complete Section 3 if the employee is later rehired or for verification purposes when the employee’s work authorization is set to expire.
Release of new Form I-9
As a result of this confusing process, the U.S. Citizenship and Immigration Services (USCIS) has periodically provided updates to the Form I-9 in an effort to help employers minimize errors and provide further instructions on correct completion of the form. As such, the DHS issued a new version of the Form I-9 on November 14, 2016. The newest version of the form is designed to make completion of the form more user-friendly and minimize errors. A noteworthy change includes allowing users the option to access and complete the form on the USCIS website. However, it should be noted that if the form is completed via the USCIS website, it must still be printed and signed by the new employee and the employer.
New features of the new form
By accessing and completing the form via the USCIS website, users have access to a number of additional features designed to help alleviate errors during completion of the form, such as real-time error messages and pop-up instructional text when a user hovers his cursor over the field. The online form also will notify a user if particular fields are not properly filled out or are left blank altogether. Another feature is that the List A, List B, and List C documentation fields provide tailored drop-down menus regarding applicable documents based on the user’s immigration status or citizenship. Finally, the new Form I-9 will include a box where the employer can provide additional information, if necessary, when it completes the section on the employee’s documents.
Higher I-9 violation penalties
Each paperwork error on a Form I-9 is subject to a monetary penalty. Before August 2016, U.S. Immigration Customs and Enforcement (ICE) could assess a penalty of $110 to $1,100 per violation. Now, the penalties have been raised to between $216 and $2,156 per violation for the first offense. Paperwork errors include missing I-9s and incomplete or inaccurate information, like recording the wrong hire date, using the wrong List A, B, or C documents to verify employment eligibility, or failing to reverify an expired List A document.
First-time offense penalties for employing an unauthorized worker have been raised to between $539 and $4,313 per worker. Discriminatory immigration-related employment practices such as asking for different or additional documents from employees based on their national origin or citizenship have increased to between $445 to $3,563 per violation. Penalties for second and third offenses will rise significantly as well. For example, the penalties for third and subsequent offenses are between $5,345 and $17,816 for discrimination and between $6,469 and $21,563 per employee for unlawful employment of unauthorized workers.
Employers that haven’t already performed a self-audit of their I-9s should start doing so now. A good way to begin is to evaluate a representative sample of I-9s. Contact an immigration attorney if you aren’t familiar with what a proper I-9 should look like.
Bottom line
HR should become familiar with the updated Form I-9 and take advantage of the new features, which were designed to help alleviate user errors and could potentially result in fewer fines for Form I-9 violations.
Need to learn more? On December 20, Jacob Monty will host the live BLR webinar Smart I-9 Recordkeeping: How to Complete, Retain and Re-Verify Using the New Form I-9. Monty will discuss how the new “smart” I-9 is different from the old version you’ve been using and how you can ensure accurate completion, retention, re-verification, and correction (as necessary) using the new Form I-9. For more information, click here.
Jacob M. Monty of Monty & Ramirez LLP practices at the intersection of immigration and labor law. He is the managing partner of the Houston firm and may be contacted at jmonty@montyramirezlaw.com.