By Marylou Fabbo, Esq.
Although a new version of the Form I-9 became mandatory only earlier this year, on July 17, 2017, the U.S. Citizenship and Immigration Services issued yet another revised Form I-9. On Sept. 18, 2017, use of the new Form I-9 will be mandatory, but employers who want to do so can start using it now.
For many companies, a new I-9 presents a new opportunity to make an I-9 error, and those errors can be costly. Just using the wrong version of the Form I-9 can subject an organization to fines or penalties. On top of that, U.S. Immigration and Customs Enforcement (ICE) interprets its regulations to allow a fine for every single error on an I-9, and it may fine a company based on the percentage of I-9s that have errors.
I-9 Audits Are on the Rise
Form I-9 audits often begin with ICE’s unexpected visit to the workplace with a demand to see the company’s I-9 file. Along with increased focus on immigration enforcement, it is anticipated that ICE will increase Form I-9 administrative audits, making it more likely that a wide variety of employers will be subjected to an audit.
The newest I-9 appears straightforward to complete. However, there are 15 pages of instructions on how to complete it that contain many specific details, increasing the risk that a mistake will be made. ICE is not likely to be hesitant to impose a fine for those mistakes.”
Fines for knowingly hiring an unauthorized alien can be more than $20,000 per person, and fines for improper completion of the form can range between approximately $200 and $2,100. The newest I-9 appears straightforward to complete. However, there are 15 pages of instructions on how to complete it that contain many specific details, increasing the risk that a mistake will be made. ICE is not likely to be hesitant to impose a fine for those mistakes.
Buffalo Transportation Co. made copies of employees’ identifying documents required to complete their I-9s but did not actually complete the I-9s in a timely manner, resulting in a $75,000 fine. Panda Express recently paid $600,000 to settle claims that it discriminated against immigrant workers when verifying them for employment. Panda Express is alleged to have required immigrant workers to provide documents that they were not legally obligated to provide and also made some immigrant employees re-verify their work eligibility even though they were not required to do so.
The use of the newest Form I-9 is designed to help employers eliminate errors, but will provide employers with fewer reasons to complete it incorrectly.
Should Your Company Conduct a Form I-9 Audit?
I-9 errors are very common. It is not unusual for employers and employees to speed through the hiring paperwork. Companies should take a look at a few of its I-9s. Errors that might be discovered may be as simple as an employee reversing his or her first and last name or forgetting to date the form. An employer may neglect to insert the first day of employment, which, prior to the newly revised form, was easy to do because the request for the date was among other text, making it easy to miss. It is also not uncommon for the company’s authorized representative to sign but not enter his or her title, name, or the date.
More serious (yet just as easy to make) errors relate to verification documentation. Frequently, employers do not enter an acceptable List A document or acceptable List B and List C documents. On the other hand, some companies have both A and B or C documents, which is also an error. Something as simple as not entering the document title, issuing authority, number(s), or expiration date for the documentation presented can be costly.
So, take a look at your audit files. Is every section that needs to be completed fully and accurately completed? Is Section 1, the section the employee is required to fill out, complete, dated, and signed? Does your authorized representative know the difference between a lawful permanent resident and an alien authorized to work? Is the Employer’s Section, Section 2, completely filled out? Does the List A document or the List B and C documents section contain all information, including the Issuing Authority? Are photocopies of the documents the employee presented attached, and, if so, why?
If you find even a few incorrect I-9s, you should conduct a full Form I-9 audit. If you are not knowledgeable about I-9 requirements, you should consider working with an attorney to conduct the audit and provide confidential legal guidance on how to correct them.
An employer could also get into trouble for incorrectly fixing the error. ‘Correcting’ an I-9 incorrectly defeats the purpose of an audit. While an internal audit does not insulate companies from penalties for violations, an audit that accurately identifies problems can provide guidance for employers going forward.
Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; firstname.lastname@example.org