In March 2013, the Citizenship and Immigration Service (CIS) released a new I-9 Employment Verification form. The new I-9 form has two pages:
- Section 1 must be completed by the newly hired employee on the first day of employment.
- Section 2, which verifies the new hire’s employment eligibility and identity, must be completed by the employer within three (3) business days. The employer also uses Section 2 to re-verify certain employees whose employment authorization and/or visas may be expiring.
Ultimately, it is the responsibility of the employer to make sure that the I-9 is filled out timely, accurately, and completely. The employer is also responsible for inspecting the documents presented by the employee on a timely manner. Employers may face hefty fines if any portion of the I-9 is incomplete, or worse, if there are no I-9s on file for each employee.
Noncompliance May Lead to Heavy Fines
Recently, the U.S. Immigration and Customs Enforcement (ICE) and the Courts have expressed some frustration with non-compliant employers. In one recent case, the Ninth Circuit reminded U.S. employers that when it comes to I-9s, “fully” completed means “fully,” not “partially.” The Court reminded employers that any mitigation of penalties based on good faith requires the employer to demonstrate at a minimum a “good faith effort to ascertain what the law requires or to conform its conduct to it,” and that a simple assertion by the employer that it thought it was in compliance is insufficient to establish good faith.
What Every HR Manager Should Do
The I-9 verification process is highly time sensitive, and employers are required to be precise in filling out and maintaining of such forms. Any errors could lead to large fines and/or further investigations by the government. This is a good reminder to employers that a strong I-9 compliance program is needed.
Each year, employer should conduct a random audit of selected I-9 forms and ensure that it has an I-9 form in place for each employee. One of CIS or DOL’s first steps in an audit is to match the I-9 forms against payroll or tax records to determine if the employer has failed to complete I-9 forms for employees.