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The Burden of the I-9 Form Falls on the Employer, Not the Employee

By August 15, 2013 February 19th, 2015 No Comments

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:

  1. Section 1 must be completed by the newly hired employee on the first day of employment.
  2. 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.

If you have questions regarding Form I-9 compliance, please contact HR Knowledge.
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