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Jul 17, 201808:10 AMLaw at Work

with Jessica M. Kramer and Ashlie B. Johnson

I-9 audits will increase in 2018 and beyond. What should employers do to protect themselves?

From Oct. 1, 2017 to May 4, 2018, U.S. Immigration and Customs Enforcement (ICE) conducted 2,282 Form I-9 audits. This is a significant increase from the 1,360 audits conducted from Oct.1, 2016 to Sept. 30, 2017.

Given this dramatic increase and the risks associated with failing an audit, employers should confirm that their current and historical Form I-9 compliance practices meet federal requirements. ICE audits can include a review of employers’ records from prior years in addition to current practices, and the fees and fines for noncompliance can add up quickly.

Businesses that have failed to comply with these requirements are subject to penalties of up to $2,236 per violation, and if the employer has made consistent mistakes or did not complete Form I-9s for any of its employees, these fines can add up to hundreds of thousands of dollars. Criminal penalties in the millions of dollars have also been assessed to companies that knowingly employed illegal workers.

What is an I-9 and who must use them?

Simply put, Form I-9 is a federally mandated form that verifies and documents two things: 1) an employee’s identity, and 2) the employee’s authorization to work in the U.S. All U.S. employers must fill out and keep a Form I-9 for every person they hire for employment in the United States, as long as the person works for pay or any other form of benefits, and the employer must keep the completed forms on file for inspection upon request.

Form I-9 compliance tips for employers

  • Newly hired as well as re-hired employees must complete and sign Section 1 of Form I-9 no later than the first day of employment.
    • It’s a good idea for employers to provide the Form I-9 and instructions for completion, along with other new hire documents, prior to the employee’s start date. The employer should request that the employee bring the completed form and associated verification documents with them on their first day of employment.
  • An employee must present an original document or documents that show his or her identity and authorization to work in the U.S. within three business days of the date employment begins. New hire checklists with required completion dates can be helpful to ensure that these documents are completed in a timely fashion.
    • As part of the Form I-9 process, new hires should present original identity and work authorization documents to the employer. Copies of documents are not acceptable. New employees can present either one document showing both identity and employment authorization, or one document showing identity and another proving work authorization. Employers must physically examine the documents and determine if they reasonably appear to be genuine before accepting and documenting the information, signing the form, and returning the documents to the employee.
    • Employers must also re-verify an employee’s documentation after the document(s) on file have expired. Creating a spreadsheet of expiration dates or using document-tracking software can ensure that the employer does not miss this important step. Please note, there are many types of identification and validity questions that can arise, as well as some documents that do not require re-verification. For more specific information, employers can visit the USCIS website.
  • Employers must retain all I-9 forms for three years from the date an employee was hired, or one year after the employee was terminated, whichever is later. Form I-9s do not need to be filed with any federal agency. It is recommended that employers retain these documents, as well as the company’s official process for completing I-9s, in a binder or file separate from the employee’s personnel file.
    • The employer can, but is not required to, make copies of the identification documentation provided at the time of hire. Maintaining copies of supporting documents can show good faith during an investigative audit, reduce fines, and serve as a defense against discrimination claims. However, employers must also make every effort to protect the privacy and identity of their employees. If copies are made, the process must be applied consistently to avoid any potential for discrimination claims, and security of the documents should be maintained.

If an employer is concerned that their practices are not compliant, it is advised that they consult with a professional HR resource or an attorney to conduct a thorough audit and put updated process documentation and staff training in place.

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About This Blog

Jessica M. Kramer is a partner at Kramer, Elkins & Watt LLC in Madison and writes about employment law. At KEW she handles employment law matters for businesses and individuals, and represents landlords in all aspects of landlord-tenant law. Jessica received her undergraduate degree from UW–Madison in 2000 and her Juris Doctor from the UW Law School in 2004.

 Ashlie B. Johnson, PHR, is the owner of Brooke Human Resource Solutions, serving the Dane County area. BrookeHR operates as an independent HR contracting resource for small businesses, providing a wide range of support as well as policy language, documentation, and employment agreements that meet today’s complex compliance standards. Ashlie received her B.S. in Human Resource Management from St. Cloud State University in 2002 and has been a certified PHR since 2007.

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