Completing the Citizenship and Immigration Services Form I-9 is one of the most important steps in the hiring process.
It ensures that employers only employ people who are legally allowed to work in the United States.
This important HR onboarding document, used to record employment eligibility verification, was due to undergo significant structural changes by the October 31st expiration of the current form, although Department of Homeland Security Immigration and Customs Enforcement extended the July 31st deadline 2023 extended .
Why should an employer care about a correct I-9?
Immigration officers may come to your place of work for an I-9 review, a raid, or to arrest specific individuals.
This continues to be a busy year for ICE. No doubt you’ve heard about a Homeland Security Investigations workplace warrant in the news over the past year.
Less newsworthy, I-9 audits also increased with no sign of slowing down. I-9 audits have nearly quintupled to nearly 6000 audits over the past four years.
One can easily imagine that of all employers in the United States, “only” 6,000 I-9 audits have taken place. The probability that an employer will be audited is low.
However, when a company is audited, there is almost a 75 percent chance that there are actual Form I-9 violations, many of which are preventable and/or technical violations.
The potential penalties for a seemingly simple form can be staggering. The highest fine imposed on an employer — who knowingly accepted forged documents from illegal immigrants — is $95 million.
The average fine for a single non-compliant I-9 is $1,862.
If your business is under investigation, look at possible penalties depending on the severity of the violations:
Knowingly discontinue and continue to commit violations from $573 to $4,586 per violation for first-time violators. For repeat offenders, that can be as much as $22,972.
Material and uncorrected technical violations, or failure to produce an I-9 range from $230 to $2,292 per violation. For example, if you have 100 I-9s and 75 of them are defective, you can expect fines ranging from $17,250 to $171,900.
Fines can be increased up to 25 percent based on company size, good faith, reputability, unauthorized aliens and history. That puts the example above at $21,562 to $214,875.
- Monitoring, suspension or disqualification from government contracts
- Criminal arrest of employers
- Administrative Arrest of Unauthorized Workers.
This is how you avoid possible penalties
Here are a few steps that can save you a lot of headaches and fines now:
1. Conduct an internal audit now. Work with your attorney or human resources to do this, as you can actually cause technical violations by incorrectly correcting I-9s or rescreening employees.
Ensure proper document retention for each terminated employee. Make sure the latest form is used.
2. Use E-Verify to confirm employee eligibility, or consider using compliance tracker software that automatically submits eligible I-9 records to E-Verify.
Ensure any software integrates with your applicant tracking system and ensure the form is completed at the time of hiring.
3. If you receive an inspection notice, other audit documentation, or a raid, contact an attorney or Human Resources immediately.
4. Make sure your company has a designated person for ICE audits or raids.
5. Train managers—anyone who will complete and sign it on behalf of the employer—to properly complete the I-9.
With the right resources and tools, hefty fines and penalties and business disruption can be avoided.
Wilford H. Stone is an attorney at Lynch Dallas in Cedar Rapids.