Why does the Form I-9 Matter?

Picture of a gray wall with square holes

Lately, most people have probably seen the news articles about the U.S. Immigration and Customs Enforcement (ICE) significantly increasing their audits to identify undocumented workers and the business who have hired them.  For FY 2017 ICE levied 97.6 million dollars in fines and forfeitures, with 95 million of that being against one employer who has at least 10% of one unit who was undocumented workers. ICE conducted 1,716 worksite investigations, 1,360 I-9 audits, made 139 criminal arrests and 172 administrative arrests in 2017.  As of the middle of May for the FY 2018 ICE has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, made 594 criminal and 610 administrative worksites related arrest.

The monetary penalties for knowingly hiring and continuing to employ ranges from $548 to $21,916 per violation.  The monetary penalties for substantive violations, including failing to produce a form I-9 range from $220 to $2,191 per violation.  5 factors are considered to determine penalty amounts:

  1. The size of the business
  2. A good faith effort to comply
  3. The seriousness of the violations
  4. Whether the violation involved unauthorized workers
  5. History of previous violations

In order to alleviate your risk for fines and penalties, you should ensure you are properly completing and retaining the Form I-9 for all employees hired after November 6, 1986.  In order to be compliant, you must have a Form I-9 on file for all active employees. You must retain the form I-9’s for terminated employees for either 3 years from the date of hire or 1 year after termination whichever is longer.

To complete the Form I-9 Section 1 the employee themselves must complete each field no later than their 1st day of employment.  Filling out the Social Security Number in section 1 is voluntary unless the employer participates in E-Verify. If the employee completes section 1 without a preparer or translator then the employee must check the box marked “I did not use a preparer or translator”.  If a preparer and/or translator is utilized by the employee then the preparer/translator must check the box marked “A preparer(s) and/or translator(s) assisted the employee in completing section 1” and then the preparer and/or translator completes the rest of that section.

Within 3 business days of starting work for pay, an employee must provide documentation to the employer that establishes their identity and employment authorization.  An employer can not specify what documentation an employee must provide them from the list of acceptable documents. The employee can select any document from the list as long as they provide 1 document from List A or 1 document from List B and C.  After the documents are provided the Employer must review the documents in the employees’ physical presence to determine if they reasonably appear to be genuine and relate to the employee.  After they have reviewed the documents then the employer completes section 2 of the Form I-9. Making photocopies of the documents provided is optional unless the employer participates in E-Verify.  Whichever decision you make on retaining copies you need to be consistent with it for all employees.

A great resource to find the full instructions, list of acceptable documents or to get a copy of the most up to date version is https://www.uscis.gov/i-9.    If when you look at this it seems overwhelming and you think you need some help Leadership Arts Associates can partner with you to make the task less daunting.  You can reach me at maryrose@leadershipisart.com or 717-430-2850.

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