I-9 form compliance not difficult, but still essential

John Hildebrand

Way back in November 1986, the federal government instituted the I-9 as a form to verify employment eligibility. Nearly 30 years later as we discuss current employment policy with new clients, far too often we hear the question “What’s an I-9?” Even among employers who know about the I-9, many remain out of compliance. 

By the way, the current I-9 form expired on Aug. 31, 2012. There’s no replacement form yet, so it’s fine to continue to use the current form until an updated form is published.

Here are some compliance issues to consider:

niming: In high turnover  firms and highly mobile operations like our local oil and gas businesses, it’s easy to forget “little things” like an I-9, but don’t. The consequences are severe if you get audited. An I-9 must be completed prior to a new worker beginning work. However, the requirement to complete an I-9 must not be done until after a job offer has been made. The reason for this is that it might be seen as illegal discrimination. This is especially true if the person in question is not a U.S. citizen. Another thing to watch out for is discriminating against a worker whose work permit is close to expiration. This is right on the I-9 itself and could be considered illegal discrimination.

Documents: Be careful how you request the documents required for the I-9. It’s illegal to discriminate based on the documents a new employee offers for the form as long as they’re on the list of acceptable documents. There’s a list of 20 documents that are acceptable on the I-9 itself.  Remain neutral as you ask for them. The best course of action is to show the list to the employee and ask them to provide their documents from this list. This keeps you out of discrimination trouble.  Employers often ask for a U.S. driver’s license and birth certificate. This combination plainly discriminates against foreign workers. You may require U.S. citizenship for certain sensitive jobs, but you’ll want to check with your labor attorney or Department of Labor on this one. 

The employer sections of the I-9 must be completed no later than three days after the employee starts working, and you don’t count the first day of work. So if the first work day is Monday, you must have the employer section of the form completed by Thursday. 

Take your time: Take your time on the forms. Be sure all the dates are correct. Be VERY sure all accepted documents are current and not expired. Be sure that all sections are completed. If you’re audited, these errors can be costly.

Fines and audits: Failure to correctly maintain records, such as not completing I-9’s in a timely manner, is considered an “uncorrectable” error that can carry fines between $110 and $1,100. If U.S. Immigration & Customs Enforcement (ICE) is convinced you’ve knowingly hired one or more illegal workers, the penalties range from $375 to $3,200 per violation. The levels of the penalties levied depend on your record of hiring, previous offenses and other factors. 

E-Verify: E-Verify is a federal search database for verifying employment eligibility and is voluntary in Colorado unless you’re doing government contract work.  E-Verify requires the use of a Social Security number and searches for discrepancies between the Social Security number and the other identification provided for the I-9.  Having used E-Verify is helpful in an ICE audit and is seen as one step in doing everything you can to do things right. The system may only be used on new employees and you must post an E-Verify notice where it can be easily seen by potential new hires. If E-Verify does report a discrepancy, the employee in question must be given a chance to resolve the issue prior to termination. We have seen that the system is not perfect and does produce errors from time to time, so don’t jump to snap judgments based on E-Verify results.

 What should I do? First, run a self-audit and make sure you have complete I-9’s on file for all current employees hired after Nov. 6, 1986. You’re also required to keep I-9’s on file for all former employees for either three years after their start date or one year after termination, whichever is longer. You should purge your files of all I-9’s outside of these time parameters because you can be held accountable for them in an audit. 

The I-9 process isn’t a difficult one with which to comply. But if you’re out of compliance, the law includes some fairly large teeth. So take your time and make sure you’re in compliance.

Our website at www.autopaychecks.com offers the most current I-9, W-4 and Colorado Affirmation of Legal Work Status forms available for download as PDFs under HR forms.

By the way, the Colorado Affirmation of Legal Work Status is Colorado’s immigration form. Make sure you have that one on file, too. It’s the one we most often find that employers are missing.