Tips for Employer I-9 Compliance

• Employers are faced with the often difficult-to-harmonize goals of avoiding any possible civil rights action stemming from illegal discrimination against foreign-born or foreign-looking employees, and avoiding criminal sanctions for using undocumented workers, either as employees or employees of subcontractors. Therefore, an employer must have a comprehensive policy on fulfilling verification requirements for workers on its job sites.
• Supervisors and management must be trained in the law of documenting workers and the responsibility for completing the I-9's.
• Every employer should have an explicit policy prohibiting the use of undocumented workers, and such notices should be prominently placed on every job site.
• Subcontractors must be put on notice and sign off on a policy that requires properly documented workers. Following the highly publicized case of Wal-Mart when the company settled an $11 million fine in 2005 with ICE, Wal-Mart not only requires a signed agreement with subcontractors, but further requires the certification of an immigration practitioner as to the subcontractors' I-9 practices. While this may be more than is common for smaller employers, it obviously provides an extra layer of protection for the employer. In extreme cases it is recommended that before hiring a subcontractor, that the subcontractor provide your company with a letter from an attorney who has recently audited that subcontractor's files.
• The employer must train management and supervisors to use common sense and, according to the circumstances, attend to the suspected use of undocumented workers by a subcontractor. This does not mean that an employer must interrogate every subcontractor employee; on the other hand, if a supervisor observes subcontractor employees hiding underneath trucks or bushes whenever a police car passes, further inquiry of the subcontractor is appropriate. Failure by the subcontractor to take appropriate follow-up steps to address the employment eligibility of its employees in a circumstance like this should result in termination of the subcontractor's services. This duty may also extend to situations involving high-skilled contractors when an employer has reason to believe that the employees of the contractor are not in the United States on the correct visa.
• And, of course, employers should consult with immigration counsel if there are any questions or situations that need clarification. The stakes are now much higher than they used to be, and the personal exposure of company personnel is much higher than it used to be. These times call for the highest standards of conduct, and employer clients should be advised to use particular caution in subcontractor settings.
• Perform quarterly or annual self-audits.

I-9 FAQs

Do I have to keep on file a Form I-9 for every employee?
Yes. The Form I-9 was made into law under the Immigration Reform and Control Act of 1986. (ICRA) to verify that individuals are eligible to work in the United States. Employers must complete a Form I-9 for every person hired after November 6, 1986.

How long must I keep I-9 Forms on file?
An employer must keep the original Form I-9 for each employee either for three (3) years after the date of hire, or one (1) year after employment is terminated, whichever is later. All current employees hired after November 6, 1986 must have I-9 Forms on file with the employer for the full term of their employment

When must the I-9 be completed?
The I-9 process must start on the day an employee actually starts work. The employee must complete the first section of the I-9 form and must provide the supporting documents noted above within three days of the date of hire.

Should I make photocopies of documents the employee presents?
That depends. If a copy is made, it must be kept with the Form I-9. The copying of supporting documentation such as Social Security cards, State ID, Passports or Drivers License, and retention of the copies does not relieve the employer from the requirement to fully complete Section 2 of the Form I-9. If employers choose to keep copies of Form I-9 documentation, then such retention must apply to all employees. If this policy is just for foreign nationals, it may amount to unlawful discrimination and a costly law suit.

Should I keep I-9 Forms in personnel files?
It is not "good practice" to keep I-9s with personnel files. Make a separate file for I-9's. The worst case scenario of an ICE audit, this would expose more information to the officers. Also, it makes internal I-9 audits much easier.

What are the employer's obligations in determining whether a document is "real" or "fake"?
The law states that you must apply a "reasonably person" test and determine whether the document presented "reasonably" appears to be genuine, relates to the individual, and authorizes employment. The law does not require you to be an" expert" in fraudulent documents.

If an employer believes a new hire is a foreign national, can he/she require specific documentation?
No. Employees must not specify which documents are produced to show employment eligibility, and you may be subjected to a discrimination suit if you require certain documentation.

Does an employer need to complete a Form I-9 for an Independent Contractors?
No. Since contractors are not employees, they are not required to do an I-9. However, make sure that these "contractors" are really "independent" and not "employees".

How about Volunteers?
Volunteers are not subject to I-9 rules since they received no "payment" for their services.

What are the anti-discrimination and document abuse rules?
Employers need to be meticulous about complying with employment verification rules, they should not be so overzealous that they end up with a discrimination suit. Employers may not refuse to hire someone because of their national origin or citizenship status and they may not discharge workers on those grounds either. Employers can separately be sanctioned based on legislation passed in 1990 if they request more or different documents than required by the I-9 rules.

What is constructive knowledge?
Constructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.

What are the fines for I-9 paperwork violations?
Recently on March 27, 2008, the fines for I-9 violations went up. Form I-9 paperwork violations range from a minimum of $110 to a maximum of $1,100.

What are the fines for knowingly employing, recruiting, or hiring unauthorized workers under Section 274A of INA?
The minimum penalty is $375 for a first offense (per worker) to a maximum of $3,200. A subsequent offense (per worker) nets a minimum fine of $3,200 to a maximum of $6,500, and a third offense (per worker) nets a minimum fine of $4,300 to a maximum of $16,000.

What are the fines for unfair immigration-related employment practices (under 274B INA)?
These penalties cover discrimination based on nationality or citizenship status, and refusal by an employer to accept documents listed in Form I-9, commonly known as "document abuse". First offense has a minimum fine of $375 to a maximum of $3,200 with a maximum fine of subsequent offenses of $16,000. Further, document abuse violations can cost a minimum of $110 for violation to a maximum of $1,100.