I-9 Compliance and Employment Eligibility Verification

All U.S. employers must complete and retain a Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form.

LEGAL MANDATE

The Immigration Reform and Control Act of 1986 (IRCA) requires all employers to attest to the employment eligibility of their employees and prohibits them from knowingly hiring potential unauthorized workers.

When completing the I-9 form, employers must verify the employee’s identity and eligibility to accept legal employment in the United States.

In the process of complying with the I-9 requirements, employers must see to it that they do not engage in discriminatory practices that may expose them to the risk of penalties and other sanctions.

The Immigration and Customs Enforcement (ICE) of the Department of Homeland Security is particularly charged with enforcement of the I-9 mandate. The Office of Special Counsel (OSC) of the Department of Justice protects employees against employers’ discriminatory practices with respect to citizenship and national origin.

THE IMPORTANCE OF A GOOD I-9 COMPLIANCE PLAN

I-9 compliance applies to all workers, whether they are US citizens or not. All employees of US-based companies must complete the I-9 form in a timely manner. E-VERIFY IS NOT A SUBSTITUTE FOR I-9 COMPLIANCE.

The government has become aggressive in promoting a “culture of compliance.” Lately, ICE has issued an unprecedented number of notices to inspect I-9s and related records. Employers are tasked with ensuring that their workforce consists of workers who are authorized to work in the US, that they do not engage in discriminatory activities, and that they comply with I-9 requirements.

Mistakes in completing the I-9 form can result in hefty fines and government sanctions. Failure to complete I-9s, incomplete or untimely completion of I-9s, and failure to comply with I-9 retention rules are just a few examples of how employers could wind up having to pay hefty fines. A pattern of employing unauthorized workers or having constructive knowledge of the existence of unauthorized workers could result in criminal investigation and sanctions.

Having a good I-9 compliance plan saves time, money and resources. It guides frontline human resources personnel to engage in compliant practices and empowers them to efficiently take measures to avoid non-compliance. Engaging in compliant practices helps avoid negative publicity and a negative impact on employee morale and productivity. Doing the right thing prevents negative consequences, costly civil penalties, and/or prosecution for criminal action.

Periodic pre-ICE audits with legal experts help employers avoid costly mistakes. Lawyers help employers address mistakes properly and as soon as they are discovered. They also assist the employer set a compliance plan and policies as well as review the suitability of available solutions. Ultimately, the objective is to save employers from substantial legal costs after an ICE audit.

ICE I-9 AUDITS

Triggers
What triggers an ICE I-9 audit?

  • Whistleblower
  • Disgruntled employee or competitor who suspects violation of the law
  • Information from other government agencies
  • It could be random too

Typical ICE I-9 Audit

  • What are the steps of an I-9 audit?
  • Notice of inspection (may be accompanied by an administrative subpoena)
  • Notice of suspect documents (opportunity to correct)
  • Notice of intent to fine (30 days within which contest/negotiate)
    • mitigating/aggravating factors
  • Final decision

Potential Outcome

  1. Monetary Penalties
  2. Criminal Sanctions
  3. Debarment
  4. Other Outcomes

Aggravating/Mitigating Factors

  1. size of the business
  2. good faith compliance efforts of the employer, e.g., training of personnel to ensure compliance
  3. the seriousness of the violation
  4. history of compliance or non-compliance (violation)
  5. the existence of undocumented employees in the workplace
  6. efforts to correct technical and procedural violations within the period (10 days) allowed by the government

GOVERNMENT PROGRAMS

E-Verify

  • This program is a partnership program between the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to verify the employment eligibility status of a newly hired employee.
  • It requires the employer to provide information to the government (there is no certainty how the information provided will be used by the government).
  • It is not a substitute for the duty to complete the I-9 form.
  • It is generally optional except for states that make e-verify mandatory and employers who hire STEM (science, technology, engineering and math) students who are on optional practical training (OPT).
  • This program is mandatory for government contractors, pursuant to the Federal Acquisitions Regulations (FAR)

Caveat: Complying with e-verify is not a safe harbor (e.g., it does not insulate an employer from penalties for continuing to hire an individual who is no longer authorized to work) but it indicates that the employer is exercising good faith in hiring authorized employees. 

IMAGE (Mutual Agreement between Government and Employers)
This is a government program that provides education and training on proper hiring procedures and fraudulent document detection. It requires enrollment in E-Verify and adherence to anti-discrimination procedures.

SSNVS (Social Security Number Verification Service)
This is a free online service by the government that allows registered users (employers, organizations or third-party submitters) to verify that the names and Social Security numbers of hired employees match Social Security’s records for wage reporting purposes only.