Your Form I-9 Guide: Are You Prepared for an Inspection?
U.S. Immigration and Customs Enforcement (ICE) is cracking down on undocumented workers. Are you prepared for a Form I-9 inspection?
As a business owner, you’ve most likely had all of your new employees fill out a Form I-9, and you’re following the rules on how to store them in case you are inspected. Form I-9 is mandatory for all U.S. employees to complete when they’re hired. Learn how to be prepared for an inspection and save you from some potentially major fines.
Form I-9 (Employment Eligibility Verification) is mandatory for all U.S. employees hired after November 6, 1986, to complete when they’re hired. Each employee must fill out the Form I-9, and you must physically examine their original copies of their identification documents, making sure they appear to be genuine, relate to the individual, and not be expired. In addition, if an employee’s employment authorization expires, you must reverify the Form I-9 to reflect that the individual is still authorized to work in the U.S. Re-verification must occur no later than the date the work authorization expires. The Immigration Reform and Control Act of 1986 (IRCA) prohibits businesses from knowingly hiring and employing a person not authorized to work in the U.S.
But There Are Exceptions
There are some cases in which you don’t need to have a completed Form I-9 on file for an individual. These cases include:
- Employees who are provided by employment services like Spur. In these instances, the employment service would secure the forms and store them.
- Individuals hired on or before Nov. 6, 1986, who are continuing their employment.
- Independent Contractors – people who are contracted to complete a project through their own means and methods. There are a lot of factors that determine whether someone can be classified as an independent contractor. You can view them here.
- Casual Domestic Services – people who are paid to help you occasionally around your private home like handymen, babysitters, or a cleaning person.
- Individuals not physically working in the U.S.
Retaining + Storing Form I-9
Form I-9 has to be completed and filed for each person on your payroll. You also have to keep their form on file for three years after their date of hire or one year after the date their employment is terminated, whichever is later.
You can store the forms, as well as copies of their identification documents, on paper, electronically, or both. If the forms are stored electronically, the storage system has to include reasonable controls to ensure its integrity, reliability, and security.
The I-9 Inspection Low-Down
ICE frequently conducts inspections on businesses to make sure that all new employees are approved to work in the U.S. through their completion of Form I-9 and proof of acceptable identification, such as a birth certificate and a driver’s license.
Officials from the Department of Homeland Security, employees from the Immigrant and Employee Rights Section, and employees from the Department of Labor will perform the inspection. They will generally send a written Notice of Inspection at least three days before the inspection, but they could issue a subpoena that allows them to review your I-9 documentation without advance notice.
You could be asked to bring your forms to their office, or they may come to where you store the forms. You have to be able to show them your stored I-9 documents and any other documentation they require for their inspection.
Avoid Violation Fines
Bottom line? Your Form I-9 game has to be strong. Small to mid-sized companies could go out of business if it’s not. The PR, attorney costs, and overall financial and criminal penalties would be difficult to overcome.
Penalties are given not only for each missing or incomplete Form I-9, but also for failing to complete the form properly. If you are found to be employing undocumented workers, the punishments become more severe. Hiring undocumented workers can lead to criminal and civil fines or even a loss of your business license.
In 2018 alone, ICE conducted several worksite inspections. The inspections resulted in 21 arrests at 7-Eleven stores nationwide, more than 150 arrests in Northern California, 160 arrests in Texas, and 212 arrests in the Los Angeles area.
The fines for failing to produce a Form I-9 range from $216 to $2,236 per violation. Businesses that continue to employ someone who is unauthorized to work in the U.S. could be required to pay a fine of $375 to $22,363 per violation. Then fines can accrue as the rules are broken repeatedly, resulting in criminal penalties.
In determining penalty amounts, ICE considers five factors:
- Size of the business
- Good faith effort to comply
- Seriousness of violation
- Whether the violation involved unauthorized workers
- History of previous violations
What About E-Verify?
E-Verify is a voluntary program operated by the U.S. Citizenship and Immigration Services that serves as a companion to Form I-9. E-Verify allows you to easily, electronically confirm eligibility of your new employees to work in the U.S. The free-to-use, web-based system matches each employee’s Form I-9 against records available from the Social Security Administration and the Department of Homeland Security.
You’ll usually receive a response from E-Verify within a few seconds of submitting an employee’s Form I-9. The response will either confirm the employee’s employment eligibility or let you know the employee needs to take further action. If the response confirms the employment eligibility, print a copy of the verification and retain it with the employee’s completed Form I-9. If the response is a Tentative Non-Confirmation, you must sign the Further Action Notice. Then, provide a signed copy of it to the employee, and retain the original with the employee’s completed Form I-9.
Depending on the state you’re located in, you may be required to use E-Verify to get a business license.
Form I-9 Resources
There are a ton of great resources online if you want to dig even more into Form I-9, employee rights, and discrimination prevention. We recommend checking out and getting familiar with the U.S. Citizenship and Immigration Services website as a starting point.
Below we’ve summarized the important information about Form I-9 for you.