After an audit or inspection by U.S. Immigration and Customs Enforcement (ICE) (a process in which officers review an employer’s I-9s to determine whether the employees are authorized to work in the U.S. and whether the employer has complied with complex rules and regulations), ICE has been known to impose fines for even seemingly innocent paperwork errors, such as:
- completing the form late
- failure of the employee to check a box indicating his/her citizenship status, or
- failing to date the form.
More serious errors can lead to increased fines, and certain mistakes may give rise to an investigation by the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) (part of the U.S. Department of Justice).
To avoid fines, employers must avoid committing errors. It sounds simple enough, but there are literally hundreds of possible errors to be made on the seemingly “simple” one-page form. Below are some ways to avoid common mistakes:
- Make sure your I-9s are completed on time. The employee must complete and sign/date Section 1 of the I-9 on or before the date of hire (the first day of work for pay), but only after a job has been offered to the person. You then have three business days to review original documents as proof of identity and work authorization and to complete and sign/date Section 2 of the form.
- Make sure no one in your organization back-dates I-9s. While completing the forms on time is important, ICE does not take kindly to fraud. If a form is completed late, it is late. If there is a very good reason for the tardiness, consider attaching a brief memo to the I-9 explaining the delay.
- Do not request specific documentation as proof of identity and/or work authorization. So long as the employee presents one List A document or a combination of one document from List B and one document from List C, and so long as the documents appear to be genuine and to relate to the employee, you must accept them. Every employee who will complete I-9s on the company’s behalf must be trained not to say “Now it’s time for you to show me your driver’s license and Social Security card.”
- Do not accept a Social Security card that indicates “Valid only with DHS authorization.” Such a card is unlikely to be fraudulent, but it does not serve as proof of work authorization (and is not an acceptable List C document). An employee who holds such a card may be able to present other evidence of work authorization, but a so-called “restricted” Social Security card is, on its own, unacceptable.
- If an employee presents an unexpired green card at the time of hire, do not request new documentation when the green card expires. Employers frequently “reverify” expiring green cards, and doing so can give rise to unfortunate run-ins with the OSC. Think of a green card like a U.S. passport. Expiration of the card/passport does not mean that the individual’s permanent resident status/citizenship has expired.
- Even if you keep copies of the identity and employment authorization documents presented by the employee, you must complete Section 2. Keeping the copies does not alleviate the need to record the document information in the relevant fields.
- If you do not use E-Verify, do not require that employees list Social Security numbers in Section 1 of the form. For employers who use E-Verify, this field is mandatory. For all others, it is optional; if an employee leaves it blank, you should not ask the employee to provide it. Nor should you complete the field using information obtained during the individual’s employment.
- If you employ individuals whose work authorization is expiring, reverify in a timely manner. Do so by requesting and documenting proof of continued employment authorization on or before the expiration date. Otherwise, you may face a fine for tardiness or, worse, an allegation that you knowingly employed an unauthorized worker.
- Make certain that the employee and the employer representative sign and date the form. This may sound simple, but failure to sign and/or date the form are easy errors for ICE to catch, and they are considered substantive errors, which frequently result in fines.
- If you make and keep copies of identity and employment authorization documents, do so consistently. Every employer gets to make a policy decision here: to keep or not to keep copies. The policy must be applied consistently, so whichever you choose (and it is important to choose wisely), follow the policy strictly. (Note: if you have not followed a single policy in the past, do not remove/destroy the existing copies now.)
While these items do not even begin to comprise a complete list of dos and don’ts, they reflect some of the most common errors made by employers. Avoid making them, and consider contacting an attorney specializing in immigration compliance to implement a comprehensive compliance plan, training, and policy.