By Greg Crosslin
I-9's: They Are to be Taken Seriously
Recently, especially since the first of the year, small business owners, supervisors and general managers have called asking about liability for I-9 violations. In fact, we have received so many inquiries over the last several months that I felt it necessary to write a brief article about I-9 issues.
Pursuant to the Immigration Control Act of 1986, Immigration & Custom’s Enforcement can impose significant fines on employers for violations. These fines have been imposed on employers not only for knowingly hiring illegal workers but also for paperwork errors on the employment verification forms (I-9) and the trend appears to be growing.
The employer’s responsibility regarding an I-9 form is fairly straightforward. No later than the close of business on the employee’s third day of employment services, the employer must complete Section II of the I-9 form. The employer must review documentation presented by the employee and record document information of the form. Proper documentation is necessary to establish that both the employee is authorized to work in the United States and the employee who presented the authorization documents is the person to whom it was issued.
The penalties are indicative of the seriousness of the I-9 requirements. An employer found to have knowingly hired, recruited or retained for a fee or continued to employ an unauthorized alien for employment in the United States shall be subject to a cease and desist order and a fine. An employer can be fined $250-$2,000.00 per unauthorized alien if the offense occurred before September 29, 1999 and not less than $275 nor more than $2,200.00 for each unauthorized alien offense which took place after September 29, 1999. Further, an employer can be fined from $2,000-$5,500.00 per unauthorized alien for a second offense depending on the applicable dates involved. An employer can be fined $3,000.00 to $11,000.00 per unauthorized alien for each subsequent offense depending on the dates of the occurrence. Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing they are or have become unauthorized to work in the United States, after November 6, 1986, may be fined up to $3,000.00 per unauthorized employee and/or face up to six months of imprisonment.
It is important to note that these penalties are not limited to employees for whom employers complete and retain I-9 files, but also cover employers’ use of contract personnel known to them to be unauthorized to work in the United States.
The Department of Homeland Security, United States Immigration and Customs Enforcement ("I.C.E.") is authorized to conduct investigations to determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and failing to properly complete, present or retain I-9 forms. If I.C.E. believes that violations have occurred, it may issue a warning notice, a technical or procedural letter notifying the employer of these items that need correction or may issue a Notice of Intent to Fine ("NIF"). If a NIF is issued, employers may request a hearing within thirty days before an Administrative Law Judge of the office of the Chief Administrative Hearing Officer, Executive Office for Immigration Review, United States Department of Justice.
If a hearing is not requested within the thirty day period, I.C.E. will issue a final order, and once issued, it is not appealable.
Liability for I-9 violations, errors and omissions can be reduced, however, through a combination of compliance and internal audits. These can be performed in-house by a properly trained human resources coordinator, supervisor or even a general manager.
During the last couple of years, we have performed audits for several of our PCO’s and have provided training and recommendations for establishing procedures and policies to ensure that each company’s employment verification process complies with the various relevant regulations.
While no article can be a substitute for a thorough analysis and compliance determination, and in fact, no audit can insure 100% compliance; however, beginning the audit process will reduce the likelihood of an "illegal hire" and certainly reduce the chance of paperwork violations. The purpose of this article is to prepare you for such an internal audit.
An internal audit to assess your compliance efforts should include at least the following:
A review of all forms I-9 (or a large percentage thereof, depending on the size of your company) for all active employees hired on or after November 6, 1986;
A review of every form I-9 (or a large percentage thereof, depending on the size of your company) for all employees who have terminated employment but for whom form I-9 must still be retained;
A thorough review of records of all active and terminated employees to determine if all forms I-9 have been completed;
A review of form I-9 for all terminated employees to establish dates for which form I-9 can be destroyed.
Once you have completed this process, then you can move to step two. Step two includes:
Completion of an internal audit form for each incorrect form I-9 identifying the error(s) and determining what information needs to be obtained in order to correct the error(s);
2. Correcting the errors with paper forms.
Over time, we have determined that some errors are more often repeated than others. The following checklist is the result of internal audits and the review of the effectiveness of policies and procedures with regard to document presentation of PCO’s employees. You can use these steps for verification of employment records and information, supplementation and/or revising personnel records, and the maintenance of personnel records on a proper basis.
If in doing your audit you have found records which are improper or inaccurate due to errors and/or are inaccurate due to misrepresentation by the employee, then a variety of issues may be presented for further action. Regardless of which occurs, if errors are found, then I would suggest that you seek recommendations for training and/or record keeping to reduce future errors and potential liability for violations.
In any event, the most common deficiencies we have found include:
Section I Deficiencies
The box indicating basis of employment authorization is not properly checked;
The A # is omitted;
Check/Data is recorded in the wrong place;
The employee’s signature or date is missing;
Section II Deficiencies
Insufficient or unacceptable documents recorded;
Incomplete information in list(s);
Document(s) recorded in the wrong list;
Date of hire missing from "certification";
Employee’s signature, address or date missing;
Section III Deficiencies
Expired work authorization;
Employee’s signature and date missing;
Other/Comments not completed or incomplete.
We have worked with a number of businesses to correct the forms I-9 under supervision during the course of our audits. We have also used the internal audit procedure to assist in training HR personnel responsible for completing the forms I-9. Whatever choice or route you take, it is clear that the audit procedure can be flexible and tailored to your particular needs. The critical point, however, is that you have a policy and a set of procedures in place to ensure that the forms I-9 are in compliance with the Immigration Control Act of 1986.