With January 2017 bringing changes to the I-9 form, alongside the increased penalties for non-compliance regarding their completion and retention just enacted in August 2016, it’s a good time to take a look at what’s different, as well as the possible ramifications if you’re not completing them correctly.
Changes to the form I-9
The current I-9 form doesn’t look like a technically complex document, but it’s got the potential for both the new employee and the HR professional assisting them to make costly mistakes. The new revisions attempt to address many of the sources of common errors, all of which can lead to fines for the employers. Revisions include:
Information Verification Assistance: Select fields of the new I-9 form will have tools in place to ensure that numerical information (such as Social Security numbers or dates) are entered correctly, by using calendars and drop-down menus to provide information. QR codes are also now generated for each form once printed to allow for ease of tracking documents in audits.
Document Aids: The new I-9 will have instructions embedded within the document to assist users in knowing exactly what to do. These will be supported by intuitive spots that allow the user to access the instructions on demand, as well as print and clear the form, as desired. HR professionals will appreciate the addition of an area that’s solely dedicated for the entry of required information, such as Temporary Protected Status or Optional Practical Training extensions, which is now currently placed in the margins, lacking a permanent place.
Substantive Changes: There are several substantive changes in addition to the cosmetic ones.
Section 1 changes to provide additional space to enter the names of multiple preparers and/or translators, along with an affidavit statement if the employee didn’t use any assistance in completing their I-9. Additionally, the requirement that employees use all other names has been changed to only reflect the need to provide all other last names. Finally, immigrants are no longer required to provide their I-94 Form number and their foreign passport information.
Section 2 provides a new “Citizenship/Immigration Status” field.
Instructions have also been separated from the form. These are still required to be provided to the employee when filling out the I-9 form. Although there are a great number of electronic enhancements to the form, it does not yet meet the definition of an electronic I-9 as found under the law. Employers will still be required to have the new employees complete the form, print it, and obtain a hard signature.
Why do I care?
Because ignorance is expensive, and lack of compliance with this requirement can not only be costly, but can prevent your business from being able to bid for government contracts or receive federal benefits. Not enough?
If employers responsible for ensuring the completion of the forms are found to have falsified documents or otherwise acted in bad faith, you can go to jail.
How expensive? New penalty schedules placed into effect by the Justice Department raise the minimum fines for paperwork violations from $110 to $216 and maximums to ten times that amount, jumping from $1,100 to $2,156. These penalties are for each incorrect I-9 form. For those companies which choose to knowingly hire undocumented workers, first offender penalties now range from $539 to $4,313 per employee. For companies who have done this more than once, or who show a pervasive pattern of hiring ineligible employees, fines now range from $6,469 to $21,563 for each ineligible employee hired.
“It is more important now than ever for companies big and small to make sure they have effective policies and procedures in place for properly ‘I-9ing’ employees during the onboarding process,” said Mitch Wexler, an immigration attorney speaking to the Society for Human Resource Management on the issue. “This includes a regular review of existing I-9s and training staff that touch this critical function.”
Ok, so that sounds bad, but what’s the real risk? In 2013, Immigrations and Customs Enforcement (ICE), the federal agency responsible for enforcement of the correct completion of I-9 forms, levied over $15 million in fines to nearly 700 companies for their lack of compliance, along with the arrest of 179 employers for their complicity in falsifying or incorrectly completing the I-9 forms.
This is a problem that can quickly spiral out of containment for you once an audit happens, even for seemingly minor clerical mistakes.
What should I do?
While the completion of the I-9 document may seem like a trivial detail, it’s obviously one that can cause you to meet a significant pain point if not done correctly and in time.
Know Your Responsibilities
Knowing the basic requirements and the retention schedules will go a long way towards ensuring that you don’t run afoul of the law. Let’s review:
- You have to do it: I-9 forms are required to be completed at any time you hire someone in exchange for wages or items of value (such as food or lodging). The requirement is applicable to employees hired after November 6, 1986. For employees hired before that date and who have been continuous in their employment and the expectation of continued employment, the requirement doesn’t apply.
- You have to do it fairly quickly: The I-9 form must be completed in a timely fashion. Employees must complete Section 1 at the time of hire, which is the first day of employment. They can fill out Section 1 at the time that you make the job offer, and they accept but not sooner. As the employer, you’ve got to review the employee’s document selection from Columns A, B, or C and complete Section 2 within three business days of hire. This isn’t negotiable. If they can’t provide you those documents, or if you can’t get to Section 2 within three business days, they shouldn’t be working. If you’re new employee is a hire for fewer than three business days, then Sections 1 and 2 must be completed at the time of hire.
- You have to know what documents are required: The employee’s responsible for showing you original, unexpired documents that establish their identity and employment authorization. The employee has the right to choose what documents they present to you. They must provide one from List A (identity and employment authorization), or one from List B (identity only) and one from List C (employment authorization only). For E-Verify participants, only List B documents with a photograph are acceptable.
This process needs to be done face-to-face with the new employee; federal regulations require that the new employee be physically present with the examiner during the review of documents.
All documents presented must be authentic and unexpired. You may copy the documents that the employee provides to you, but you must do it for all of your employees, regardless of their citizenship status or nation of origin.
- You have to keep them handy: The I-9 form must be kept separately from the employee’s personnel file, and must be retained for as long as the employee works for the company. Once they’ve moved on, the retention rules shift; you must determine the later of these two conditions: three years after hire date, or one year after the day that the employee terminates employment. I-9 forms can be maintained in multiple formats (paper or electronic), but must be accessible for review and audit.
Don’t be sketchy
Acting in bad faith is a quick path to see fines increased to the maximum and run the real risk of going to jail. If you find yourself in a situation that tempts you to alter dates, forge signatures, or hire those without proper documentation, think long and hard.
While a federal audit might be years in coming, or never come at all, is this the type of business practice that you want to maintain? Is that who you are?
Be careful of allowing even small ethical lapses slide into your business practices; what’s a small intentional oversight in this corner today can easily be spread to others tomorrow.
Furthermore, that teaches your employees that it’s acceptable to cut corners, and once that attitude festers and takes root, it’s nearly impossible to predict the amounts of damage that it can cause.
Train, train, train and audit, audit, audit
Make certain that the trained staff who handles these documents are also well-trained on their responsibilities and the proper procedures to take when completing them. The U.S. Citizenship and Immigration Services (USCIS) department has wonderful training aids to assist in ensuring that your employees know what to do, and the Society for Human Resource Management is a resource for FAQ and good practical, in-the-trenches advice on pitfalls and scenarios that HR professionals face daily.
Beyond training, ensure that you take the time as a part of your annual HR calendar to set a time to perform a self-audit of current and stored I-9 files.
By making certain that you’re well trained on how to properly complete these forms, and taking the time on a regular basis to self-identify and correct any mistakes on forms, you’ll be moving towards full compliance and have nothing to fear in case of that eventual audit.