The Record-Keeping Mistake You Could Be Making

The Employment Eligibility Verification form—known as the Form I-9—is a deceptively difficult form for employers to complete, even though it is only two pages in length and its sole purpose is to document identity and work authorization.

Although the Form I-9 is only two pages (three pages if you count the Lists of Acceptable Documents), it is supported by 15 pages of instructions, an entire section on the Department of Homeland Security’s website called I-9 Central and a 69-page handbook called the M-274, Handbook for Employers, Guidance for Completing Form I-9.  To some, it may seem an employer would need a Ph.D. to successfully complete the form and avoid penalties. But before you throw in the towel, take a look at the following tips and best practices on successful completion of the Form I-9, which are aimed at helping you protect your company and mitigate risk.

Proper completion of the Form I-9 is especially important in the construction industry, given today’s environment and other realities with the workforce. An employer’s good faith compliance with Form I-9 requirements can establish an affirmative defense to allegations of knowingly hiring unauthorized workers.

Before discussing practical tips and best practices, let’s first address penalties for noncompliance with the legal requirements under the Immigration and Nationality Act to hire and maintain a legal workforce, including the paperwork requirement. All employers must complete the Form I-9 for any new employee within 3 business days of hire. This requirement has been around since 1986. 

As mentioned earlier, the Form I-9 is intended to document a new hire’s identity and work authorization, which is demonstrated both by the new hire’s statements in Section 1 of the Form I-9 and the documentation they present for Section 2 completion. There are both civil and criminal penalties that can attach for noncompliance with the Form I-9 requirements.

The first are paperwork violations, which can occur if an employer does not complete, does not timely complete or does not properly complete the Form I-9. The second are civil violations for hiring or continuing to employ unauthorized workers. The third are criminal penalties for pattern or practice violations, where an employer engages in a pattern or practice of hiring or continuing to employ unauthorized workers knowing they are doing so. And fourth are the civil penalties for discrimination-related violations, which would be brought not by the Department of Homeland Security, but by the Department of Justice. The Form I-9 packs a lot of punch, especially when you consider that penalties for not having a Form I-9 on file or failing to complete it within the allotted time requirement can range from $216 to $2,156 per form. 

Now to the practical tips and best practices for any owner or manager seeking to shore up compliance.  As a baseline, it is important to understand your company’s current practices around completion of the Form I-9 and use of E-Verify, if you in fact participate in E-Verify and ask yourself this: Who completes your company’s Forms I-9? Where are they stored to ensure they are maintained in a confidential manner? Are there written policies and procedures around not only the Form I-9, but the company’s participation in and use of E-Verify? Are individuals responsible for Form I-9 completion required to undergo training?

Practical Tips & Best Practices

• First and foremost, do you have a Form I-9 for each current employee? When a company is the subject of a workplace investigation by the Department of Homeland Security, specifically Immigration and Customs Enforcement (ICE), the first thing ICE will ask for are a company’s Forms I-9 for all employees. This will be stated in the Notice of Inspection, and the employer who is the subject of the investigation will only be afforded 3 business days to turn over their Forms I-9 for inspection by ICE.
• To protect your company from claims of continuing to employ someone knowing they are not authorized to work, you need to implement a “tickler system,” to notify you when an employee’s temporary work authorization expires. Prior to expiration, an employer needs to re-verify an employee’s work authorization using Section 3 of the Form I-9. Temporary work authorization includes those employees working with an Employment Authorization Document (a work permit), or those employees in H-1B or H-2B status. As a general rule, permanent resident cards (aka “green cards”) do not need to be re-verified because one’s status as a lawful permanent resident essentially does not “expire.”   
• Photocopy the document or documents presented by the employee for Section 2 purposes. Although this is not required by law, it is a best practice. Also, although again not required by law, employers participating in E-Verify are required to photocopy certain documents as a condition of participating in the program, including the United States passport, passport card, green card or the work permit.
• Maintain the Forms I-9, photocopies of documents and E-Verify confirmation printout (if you participate in E-Verify) separately from personnel records. That way, if you are the subject of an ICE investigation and you are asked for the Form I-9 “files,” you are only providing that information and not all other personnel records, which may lead to other types of government investigations.
• Maintain the Forms I-9 for current and terminated employees separately. The reason being that the law allows an employer to purge Forms I-9 after a specific period of time. The clock starts upon termination of an employee and the rule is that a Form I-9 can be purged 3 years after date of hire, or one year after termination, whichever is later.
• Conduct an internal audit of your Forms I-9 to identify trends or patterns by those completing the form on behalf of the company. Audits also afford employers the opportunity to make certain corrections to the forms and prevent further incorrect or inappropriate behavior. Sometimes, trying to do the right thing in any area with no training can compound the problem.
• Maintain consistency in who completes the Form I-9 and provide training. A lack of consistency is a common problem that leads to errors. U.S. Citizenship and Immigration Services provides training opportunities and materials on its website, uscis.gov.
• Consider engaging and/or having outside immigration counsel who is knowledgeable in Form I-9 and E-Verify compliance issues and has represented clients during an ICE workplace investigation.

Finally, be prepared for a visit by ICE agents looking to serve your company with a Notice of Inspection, which may also include an administrative subpoena. The Trump administration has made it clear that they are prioritizing immigration enforcement, and that they are looking to protect American workers. One way to do this is through increased scrutiny on employers and their workforce, and one tool they would use are ICE workplace investigations. 

To prepare for an ICE workplace investigation, the typical practice is that one or two agents will arrive with a Notice of Inspection in hand. First, train your employees on how to address the agents. Ask for their credentials and business cards. Ask them to wait while a manager or owner is called. Beware of idle conversations. Have clear boundaries at your workplace delineating employee only and restricted areas.

For construction sites, this is more challenging, which makes it all the more important to train foremen and project managers that if ICE agents present themselves at a worksite, they are the only one who should interact with them. Finally, if you are the subject of an ICE workplace investigation, you will need to sign the Notice of Inspection presented by the agents. The clock starts to tick after that, and it is important to immediately call your immigration attorney to prepare the documentation and defense. Don’t roll over just because you are the subject of an investigation.