Part 1 of 3: Just the Facts, I-9 Forms

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Do you know the financial penalties associated with incomplete I-9 Forms?

I-9 Background

The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers, regardless of size, to complete a Form I-9 upon hiring a new employee to work in the United States. Reverification of eligibility for employment in the United States may also be required under certain circumstances.

The U.S. Department of Homeland Security (DHS) revises Form I-9 occasionally, and employers must use the current version of Form I-9 for new hires and reverification. Employers can find the most current form on the U.S. Citizenship and Immigration Services (USCIS) website. https://www.uscis.gov/i-9

Federal Law

In 1986, Congress enacted IRCA in an effort to address the problem of people illegally immigrating to the United States and becoming employed by U.S. employers. IRCA requires all employers, regardless of number of employees, to verify the identity of new employees and their eligibility for employment in the United States. IRCA also prohibits discrimination based on citizenship or national origin.

IRCA prohibits an employer from:

  • Knowingly hiring an alien who is not authorized to work.
  • Hiring any individual without verifying identity and work authorization.
  • Continuing the employment of a person if the employer knows or should know that the person is not authorized to work.
  • Knowingly forging, counterfeiting, altering or falsifying any document to satisfy any immigration-related requirement.
  • Knowingly using, accepting or receiving any false document to satisfy any immigration-related requirement.
  • Discriminating in hiring or firing against a citizen or an intending citizen based on national origin or citizenship status.
  • Intentionally requiring an employee to present any specific document or combination of documents for Form I-9 purposes.
  • Intentionally requiring an employee to present more or different documents than are minimally required for the employment verification process.
  • Intentionally refusing to honor documents that reasonably appear to be genuine.
  • Collectively, these amended discrimination provisions are referred to as “document abuse.” The document abuse prohibitions apply to all workers, regardless of citizenship or immigration status.

Employment verification is not required for people hired prior to November 7, 1986. Employees, including individuals in the country illegally, have grandfathered status if their employment began prior to November 7, 1986, and “continues.” Employment is “continuing” when an employee transfers within the company to another location, returns from an employer-approved paid or unpaid leave of absence, is recalled from a layoff that did not result in termination of employment, or is employed by a related or successor employer. Employees lose grandfathered status when they are lawfully terminated by the employer, quit or do not have a reasonable expectation of re-employment.

Retention of I-9 Forms

Employers must retain an employee’s completed Form I-9 for as long as the individual works for the employer. Once the individual’s employment has terminated, the employer must determine how long after termination the Form I-9 must be retained, which is either three years after the date of hire or one year after the date employment is terminated, whichever is later.

Potential Penalties

Big Picture:  Civil and criminal fines and penalties may be imposed for employment of undocumented workers; individuals responsible for IRCA compliance can be held personally liable.

Nitty Gritty Details:  The good-faith provision of the law, which allows people committing technical or procedural failures on a Form I-9 up to 10 days to correct such failure without penalty, does not apply to a person or entity that has engaged in or is engaging in a pattern or practice of employing, recruiting or referring unauthorized workers.

Paperwork violations (including failing to properly complete, retain or make Form I-9 available for inspection) may result in a penalty of $220 to $2,191 for each individual for whom verification was improper or omitted.  The amount of any penalty is determined based on the size of the business (revenue, payroll and number of employees), the good faith of the employer, the seriousness of the violation, whether the employee was unauthorized and the history of the company with regard to previous violations.

As you’ve read, the I-9 Form, with its rules, laws and complexity will make your head spin but keep reading next month for our second installment in our three-part series on I-9 Forms.  We’ll talk about how to keep you and your business compliant using the E-Verify system.

As always, if you have any questions or concerns regarding I-9 Forms at your business feel free to call 515-401-2233 or email at Susan@HRon-call.com    

 

Susan Arnold HR On-Call, LLC p. 515.401.2233 e. Susan@HROn-Call.com linkedIn A little more about us: Susan Arnold, owner and lead HR Consultant at HR On-Call, LLC. Susan has 20+ years of HR experience and provides a HR presence to business organizations without the overhead expense of a full-time employee. Susan helps business owners improve employer/employee relationships and allows them to focus on their business while resting assured that they are in full compliance with state and federal law. Areas of expertise:

  • Reduce Employer Risk and Liability
  • Customized Employee Handbooks
  • Performance Reviews
  • Improve Employee/Employer Relationships
  • Background Checks
  • Personality Assessments
  • Guaranteed EEO Compliance
  • Employee Retention
  • Recruitment / Hiring
  • Employee Discipline/Discharge

Susan is passionate about her customers and listens to their needs. If you are interested in any of the details above or would like more information about her services, please contact Susan! If you have questions on how your specific policy should read or need help navigating a certain instance, contact HR On-Call, LLC

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