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What you Need to Know about I-9 Compliance

Why you need I-9 forms

The I-9 form must be used for all U S employers with an E-Verify authorization, regardless of whether the job is full-time or part-time or if the employee will be working in or outside the U S to remain compliant with employment eligibility verification laws.

Who Must Complete the I-9 Form?

All U S employers must correctly complete the I-9 Form for every employee. All new hires should complete the form and any rehires, whether full or part-time, regardless of immigration status, except those hired before November 7, 1986, when the Immigration Reform and Control Act became law. Existing employees are not required to complete a new I-9 Form as long as they have a good I-9 form on file.

What is the Current I-9 Form?

The current form was made mandatory in May of 2022, but since its creation in 1986, it has been adjusted many times. The recent I-9 Form is dated 10/21/2019 and is on the U.S. Citizenship and Immigration Services website.  It should be noted that this original form states that it expired on October 31, 2022. However, it is still in use until further notice.

How does I-9 Compliance work for remote workers?

Verifying I-9 compliance for remote workers has always posed significant challenges for employers. There is no indication that this will change anytime soon because it is anticipated that more and more companies will be leaning towards switching to a remote first workforce. Some common workarounds that companies have found useful are:

  • Inviting remote employees to on-site orientation, onboarding, and training.
  • Allowing remote employees to verify each other’s documentation.
  • Utilizing a trusted remote company representative, agent, or lawyer.

As a result of the COVID – 19 pandemic, in March 2020, The U S Department of Homeland Security relaxed its standards for in-person I-9 verification. This was meant to be a short-term plan. However, many of the proposed changes were extended until July of 2023, and some may even become permanent. Here are a few of the accommodations made:

  • DHS extended flexibility to businesses that employ remote and in-person employees by not requiring the employer to review identity and work authorization documentation in person. Initially, this only pertained to companies that only employed remote workers.
  • Employers can inspect Section 2 of the form remotely within three business days of hire. DHS is proposing to make this change permanent, with a final decision expected by the end of 2023.
  • After COVID-19 protocols relaxed and business resumed normal operations, any employees onboarded remotely must verify documentation in person. This will require employers to go back to Section 2 of the I-9 form and update the “additional information” field if they entered “COVID – 19” originally and add “documents physically examined” along with the date.
  • During the pandemic, DHS accepted expired List B documents temporarily. However, that is no longer the case. Any employees previously allowed to provide expired documents must present current and updated documentation by July 31, 2022.

What happens if an employer fails to complete an I-9?

The U.S. Immigration and Customs Enforcement Agency, or ICE, can impose strict penalties for missing or incorrect I-9 reporting information. The penalty’s magnitude depends upon several factors, including the size of the company and the number of violations committed. Penalties have increased recently, and employers should expect this trend to continue. I-9 paperwork violations in 2022 ranged from $252 to $2507 for first-time offenses, and for the 2nd offense, penalties ranged from $1161 to $2322.

Any employers found recruiting, rehiring, or referring unauthorized non-citizens may be required to pay the penalty ranging from $627 to $5016 for the first offense of each knowingly employed unauthorized worker. For repeat offenders, the penalty significantly increased up to $25,076. With these sanctions in place, it’s no wonder that only a few companies have ignored the warnings and necessary mandates. If employers attempt to deceive ICE, they run the risk of even more severe fines, criminal charges, and in some cases, jail time, even if previous offenses were not in the recent past.

What are an Employer’s Responsibilities When Completing an I-9 Form?

The employer must ensure that all employees have completed all necessary information on the form and have signed and dated it. Any missing information can result in a violation.

What is the Purpose of Section 1 of the I-9 Form?

Employees must complete Section 1 on or before their first date of employment. Some businesses offer employees the opportunity to complete an online I-9 Form before their first day. This is a time saver and a great way to ensure compliance. When completing Section 1, employees must fill in the following information:

  • Name
  • Address
  • Date of Birth
  • Social Security Number
  • Citizenship Status
  • Work Authorization Status
  • Phone number and Email address are optional

What are Common Errors in I-9 Section 1?

Section 1 seems straightforward, but simple mistakes can and do happen. Here is a list of the most common mistakes made:

  • Failure to complete the form entirely
  • Form not signed or dated
  • Full address not listed
  • Unchecked immigration status box
  • Missing social security number

What are Common Errors in I-9 Section 2?

Section 2 is the sole responsibility of the employer to complete and submit within three business days of a new hire. The primary purpose of Section 2 is for employers to evaluate acceptable documents that will establish an employee’s identity and eligibility for employment. Some common errors made when completing Section 2 include:

  • Mistakenly accepting expired documents
  • Not supplying the expiration date of documents
  • Failure to complete List A, B, and C
  • Company representative forgets to sign
  • Failure to complete, sign and return the form by day 3 of the first day worked
  • Over-documentation – i.e., would be completing List C even though List A was also submitted. This could be perceived as discrimination and trigger an investigation by the Immigrant and Employee Rights team within the U S Department of Justice.

What Should Employers Do if an Employee has used a False ID for I-9 Verification?

If an employer becomes aware that an employee has supplied false documentation and is not authorized to work in the United States, they must terminate their employment immediately. If the employee can prove that they have the proper documents and citizenship has been obtained, the employer has the right to continue their employment. The employer would need to complete an entirely new I-9 form with the latest documents and attach it to the old form with a dated and signed explanation.

If your company has a policy regarding honesty and integrity, it should be applied consistently to all employees. If you have previously terminated individuals for violation of this policy, you must do the same for all cases. Any inconsistencies could imply discrimination and put the company at risk.

What is the Purpose of Section 3 of the I-9 Form?

Section 3 of the I-9 Form pertains to re-verifying expired documents. Re-verification is optional for permanent residence, green cards, driver’s licenses, or passports.

If re-verification is called for, it is the responsibility of the employer to complete this Section. Re-verification is required for Visas and Employment Authorization Documents (EAD). If unaddressed, the employer is subject to penalties.

What are Common Mistakes Employers Make During the I-9 Verification Process?

Whether you’re well versed with employment eligibility verification and I-9 compliance or relatively new to the process, you’re bound to encounter a mix-up. Don’t let one of these common oversights trip you up:

  • Only accept valid documents.
  • Don’t tell employees which documents to give, even if you’re just trying to be helpful.
  • Never accept photocopied documents – only the original documents are acceptable.
  • Only ask job applicants to fill out an I-9 Form if an official offer of employment has been accepted.

Who is Responsible for Correcting Errors on I-9 Forms?

The simple answer to this question is whoever filled out the form. This means Section 1 is the employee’s responsibility, while the remaining sections are the company’s responsibility.

How Can Employers Correct Mistakes on I-9 Forms?

When simple errors are made, they can be easily corrected by making the appropriate corrections in a different colored ink than the original information with the date and initials of the person making the changes. This is also the case for adding any missing information. For multiple errors, you should complete a new form and attach the original form with a note of explanation. The original signer should make adjustments.

Why Should We Conduct an I-9 Internal Audit?

An internal audit is the best way to determine your culpability, uncover potential errors, and reduce stress levels should an ICE inspection occur. You should conduct audits frequently if you work in an industry with high turnover rates. The overall size of the organization and the number of employees will also play a role in audit frequency. A trained specialist should conduct internal audits.

Need help with I-9 compliance? Gro Consulting provides fractional HR services for small to medium-sized companies. Contact us today to schedule a consultation.