Compliance updates, analysis, plus HR and payroll best practices from HR One
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As the Trump Administration takes steps to fulfill campaign promises of cracking down on illegal immigration, the Immigration and Custom Enforcement (ICE) Director Tom Homan has indicated that his agency will be concentrating on worksite enforcement in order to hold employers with undocumented employees accountable. Homan described the effort by saying "We've already increased the number of inspections in work site operations, you will see that significantly increase this next fiscal year."
How do employers verify who is and isn’t eligible to work?
Within three business days of when employment begins both employees and the employer (or authorized representatives of the employer) must complete the I-9 form, or Employment Eligibility Verification. On the form, an employee must attest to his or her employment authorization, and present to his or her employer acceptable documents that evidence the employee’s identity and employment authorization. The list of acceptable documents can be found on the last page of the form. The employer must examine the document(s) presented by the employee, determine if the document(s) reasonably appear to be genuine and identify the employee, and then properly record each document in the column of the I-9 form. The employer must retain an employee’s completed Form I-9 for as long as the individual works for the employer. Once the individual's employment ends, the employer must retain the I-9 form for either 3 years after the date of hire or 1 year after the date employment ended, whichever is later and make it available for inspection by authorized government officers.
What if an employee or new hire is unable to produce I-9 documentation?
If an employee is authorized to work they should produce their I-9 documentation on the first day of employment (which employers should communicate as part of their job offer/ communications regarding start date), but if they cannot an employer may allow the employee to work for up to 3 business days, while making sure that the “due date” for the missing documents is clear. If an employee is still unable to produce the documents, they must present a receipt for the application of the documents within three business days, of their start date, and the actual document(s) within ninety days.
Keep in mind that in almost every case the employee must provide the original document or certified copy, and photocopies, scans, etc. will not suffice. Take careful note of the expiration date of all documents and make sure they are valid.
If I don’t have anything on file for current employees who were hired in the last three years should I have them complete the I-9 now?
Yes! While the I-9 should have been completed at the time of hire, having some kind of documentation will demonstrate a good faith effort to comply with the law in the event of an ICE audit. Never backdate an I-9.
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When ICE conducts an inspection, what exactly are they looking for?
When ICE conducts an inspection, they’re looking for an employer’s I-9 forms. As an employer you have the right to ask for a written “Notice of Inspection,” and three business days to turn over I-9 forms.
The inspector is looking for the employer to have I-9 documentation for every employee hired within the previous three years or terminated within the last year (whichever is longer).
What happens if they find gaps in our records?
Failing to comply with Form I-9 employment requirements may result in hefty fines that have increased. An employer may be fined a minimum of $220 for technical violations on less than 10% of employee records, up to nearly $20,000 for repeat willful violations. In certain circumstances employers may even be criminally prosecuted for hiring undocumented workers.
Am I allowed to correct an I-9?
Correcting an I-9 has limitations and must be done in a very specific way. The US Customs and Immigration Service will allow for the correcting of “administrative errors”, but you are not permitted to correct “substantive errors”. An administrative error is generally a partial omission of information. Adding the expiration date of a driver’s license or adding the start date would be considered administrative errors and they can be fixed if you follow the correct procedure. A substantive error is one that cannot be fixed as it would generally involve the adding or changing of a date or adding an entire section of information. A substantive error can never be corrected and there is and will always be the possibility of exposure to a fine with a substantive error. But a substantive error can be mitigated by completing the entire section over on a blank form, again, with a specific process. Employers may only make corrections to Parts 2 and 3 of the form; Employees must make corrections to Part 1.
Let HR One Help
For subscribers to the HR One Support Center, there are a variety of guides, articles, and checklists that can help with I-9 compliance. HR One can conduct an onsite I-9 audit to identify gaps in the employers’ records and bring your organization into compliance before an inspection. If an employer receives a Notice of Inspection, HR One can also help to prepare for the inspection by assisting an employer with organizing their I-9 records. To learn more, complete and submit the form below. Finally, the latest I-9 is available in the "New Hire Packet" under the Forms tab when HR clients login above.