• Form I-9 Compliance: An Overview of the Process and Its Heightened Significance for U.S. Employers
  • January 3, 2019 | Author: Katia Desrouleaux Bowman
  • Law Firm: Taylor, Porter, Brooks & Phillips, L.L.P. - Baton Rouge Office
  • In January 2018, U.S. Immigration and Customs Enforcement (ICE) announced its commitment to increase worksite inspections and audits of Forms I-9; and it unabashedly lived up to that promise. The number of I-9 audit notices served upon businesses across the United States from January to July 2018 increased by approximately 300% when compared to the entire 2017 fiscal year. In fiscal year 2017, businesses found to have violated the law were ordered to pay $97.6 million in criminal forfeitures, fines and restitution; and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case. These numbers are alarming and compel immediate preventive action by all employers desiring to maintain compliance and minimize potential reputational damage and financial exposure resulting from an I-9 audit. So what is a Form I-9?

    The Employment Eligibility Verification Form or, Form I-9 is the tool employers are required to use to verify the identity and work authorization of every employee (with some rare exceptions), regardless of citizenship. The law that requires such verification is the Immigration Reform and Control Act of 1986 (IRCA), whose purpose is to thwart illegal immigration to the United States and the employment of unauthorized workers by U.S. employers. As a general rule, employers must timely complete and retain the Form I-9 for each employee, including U.S. citizens, hired on or after November 6, 1986.

    This article covers only the highlights of the employment eligibility verification process. For this reason, employers are advised to consult an attorney and the U.S. Citizenship and Immigration Services’ (USCIS) employer handbook to ensure compliance with the applicable guidelines. While the Form may appear to be simple, the immigration bar agrees that Form I-9 is one of the most complex three-page documents there is, as evidenced by the related 15-page instructions and 120-page employer handbook available through USCIS. Employers should heed the intricacies of the I-9 process and implement necessary measures to ensure compliance.

    These are the basics of the process:

    • When and how to complete the Form: Employers must require each employee to complete Section 1 of the Form on the first day of employment. Then, within three business days of the date employment begins, employers must: (1) have each employee present unexpired original documentation showing the employee’s identity and employment authorization, (2) examine the original documentation submitted by the employee, and (3) complete Section 2 of the Form.
    • Who does not have to complete the Form: Employment verification is not required for individuals hired prior to November 7, 1986. There are additional categories of individuals for whom employers are not required to complete a Form I-9 including, but not limited to, independent contractors (although this category of workers poses special problems); casual/domestic workers; and employees who are not physically on U.S. soil.
    • When must employment eligibility be re-verified: When an employee’s work authorization expires, the employer must re-verify, in Section 3 of the Form, the employee’s work authorization on or before the date of expiration. Employers may also re-verify work authorization when an employee has a name change, or when an employee is rehired within three years of the date the Form I-9 was originally completed. Importantly, employers should not re-verify such documents as U.S. passports and permanent resident cards, irrespective of their date of expiration.
    • How and for how long must employers retain the Forms: Employers are required to maintain Forms I-9 for inspection for all current employees. In the case of former employees, employers must retain Forms I-9 for a period of either three years from the date of hire or one year after the employee’s termination, whichever is later. The Forms may be stored on paper (and separately from employee personnel files) or electronically.
    • Preparing for government inspection and auditing: It is advisable for employers to conduct yearly internal audits of their I-9 Forms to ensure compliance for all former and current employees (including recent hires, re-hires and holders of expiring work authorization requiring re-verification). Getting an attorney involved in an employer’s self-audit is not only instrumental in helping minimize I-9 deficiencies, but it also carries with it an added benefit, as the attorney-client privilege attaches to communications with, and document review by, the attorney. Such a confidentiality safeguard is not available when the audit is conducted exclusively by Human Resources personnel.
    • I-9 audit and inspection by the government: A notice of inspection (NOI) alerts employers that ICE will audit their hiring records to determine whether they are complying with the law. Employers are required to produce their I-9s within three business days, after which ICE will inspect them for compliance. If violations are found, the I-9 inspection will likely result in civil fines and could lay the groundwork for criminal prosecution if the employers are knowingly violating the law. An immigration attorney can potentially help mitigate the fines through negotiation.
    • Liability for I-9 penalties: It is imperative that employers be aware that penalties are not limited to companies. IRCA imposes liability on “entities or persons,” signaling that an owner/manager cannot simply dissolve or leave his company to avoid personal liability for knowing violations of the verification process. Further, a successor company (formed through a corporate reorganization, merger, or sale of stocks or assets) that chooses not to prepare new I-9 Forms is liable for any violations in the original I-9 Forms prepared by the previous company.
    In sum, ICE befittingly characterizes its heightened worksite enforcement strategy as a “game changer” – one that will forcefully procure a culture of compliance with the law. Devising a business plan through which to ensure preparedness for I-9 audits should be a priority for all U.S. employers. More than ever, incurring the cost of implementing reinvigorated compliance with the law (through trainings, self-audits, I-9 policies) makes good business sense, when weighed against the severity of the penalties to which employers are exposed for I-9 violations. Business owners should act now to avoid unnecessary trouble with the federal government in the future.