U.S. Immigration and Customs Enforcement has recently increased the frequency and intensity of its Form I-9 audits. Employers must be certain they are compliant with regulations for Form I-9, also known as the Employment Eligibility Verification form, to avoid steep fines or even lawsuits from the government.
As the ICE Newsroom reported, Broetje Orchards, LLC of Prescott, Washington, will have to pay $2.25 million in civil penalties for violating the Immigration Reform and Control Act, of which Form I-9 is a crucial element. In the summer of 2014, ICE's Homeland Security Investigations audited Broetje Orchards and found 950 of the business's employees may not have been legally eligible to work in the U.S.
Benesch Attorneys at Law reported audits and investigations like that of Broetje Orchards have become more routine since April 2014, as the Obama administration is intent on eliminating unlawful employment throughout the country.
What does Form I-9 do?
Form I-9 requires employers to verify that each employee hired after Nov. 6, 1986 is eligible and legally authorized to work in the U.S., according to the Department of Homeland Security and U.S. Citizenship and Immigration Services. The form also asks for identification for all employees. This requirement applies to both U.S. citizens and noncitizens.
Who fills out Form I-9?
There are two sections on Form I-9. Section 1 asks for the employee to complete with his or her personal information as soon as he or she is hired.
The employer is responsible for filling out Section 2 and dating it within three business days of hiring the employee, according to Form I-9. In addition, human resources departments make sure employees provide their new employers with accurate documentation, which serves as proof of identity and employment eligibility. Documents described on Form I-9's List A confirm both identity and eligibility. If an employee doesn't have an item from List A, he or she must provide one item from both List B and List C.
- List A examples: U.S. Passport, permanent resident card (Form I-551), foreign passport with a temporary I-551 stamp
- List B examples: Driver's license, military ID, voter registration card
- List C examples: Certification of birth abroad, Native American tribal document, employment authorization document issued by the Department of Homeland Security
The employer must also complete Section 3 should a former employee come back to work for the business within three years of completing the first Form I-9.
Common mistakes employers make with Form I-9
Filling out Form I-9 can be tricky, as there are tiny details employees and employers must adhere to. Below are a few things HR professionals may want to watch out for as they complete these documents:
- Do not file Form I-9 with the government. Form I-9 is meant to be kept by the business in case an audit is conducted. Should an employee leave the company, HR must retain the forms for a period of up to three years from the date of hire or one year after the employee's final day, whichever is longer.
- Form I-9 cannot be utilized in any capacity prior to making a job offer to a potential employee. Doing so could violate restrictions regarding discrimination against workers based on their ethnicity, race or other identifying factors.
- HR must make sure both the employee and employer have dated the documents. Forgetting to date Form I-9 within three business days of hire renders the form incomplete or fraudulent.
Penalties for incomplete Form I-9 compliance
If ICE finds a company isn't compliant with Form I-9 regulations, ICE will notify the company and allow ten business days for correction. Failing to provide Form I-9s during an audit could subject employers to monetary fines up to $1,100 per violation. ICE may also criminally prosecute employers that knowingly hired employees ineligible for work in the U.S. in addition to fining these businesses anywhere from $375 to $16,000 per violation depending on the severity of the charge. Should a business continually violate From I-9 stipulations, ICE reserves the right to bar the company from receiving government benefits in the future.
To ensure businesses are compliant and avoid penalties, it may be wise for them to invest in an HRIS application for assistance in tracking and storing documentation. It's an invaluable tool for all companies looking to increase efficiency in the HR department.