I-9 enforcement continues to be a focus of government resources and investigation. Employers should ensure their I-9 house is in order, including making sure employees in charge of the process have proper training, and conducting in-house audits.
What is I-9 Employment Verification Compliance
Employers are required to verify the identity and work authorization of each employee they hire within 3 days of hire. At the same time, employers must not discriminate against individuals on the basis of national origin or citizenship during the hiring, employment or termination process.
Who requires an I-9 Form
Employers must complete an I-9 Form for every employee that was hired after November 7, 1986. A person is considered an employee for I-9 purposes if they receive anything of value in exchange for their labor services, which includes food or lodging.
Employers need not complete a Form I-9 for independent contractors or for individuals who provide services through a contractor. However , employers must be extremely careful when characterizing individuals as independent contractors or when contracting with employment agencies that provided workers, and cannot continue to employ these workers if they come to know that such individuals are not authorized to work.
Retention/Storage of I-9 Forms
Employers are not required to submit I-9 forms to the government, but instead are required to retain them in the event they are requested by the government for audit or inspection purposes. Employers must retain I-9 records for 3 years after the date of hire, or 1 year after the date the employment ends, whichever is later. I-9 records should be kept in files which are separate from employee personnel files.
Dealing with Errors on I-9 Forms
Employers should routinely perform audits and cross check I-9 records against payroll records to make sure that I-9 Forms have been completed for all employees, and that they are completed properly. If errors are discovered on the forms, corrections to the forms should be made, and the corrections should be clearly initialed and dated to reflect the change. Making such corrections can help minimize government fines in the event of an audit.
Social Security Mismatch Letters
Employers may not verify employees’ social security numbers for I-9 purposes unless they are participants in the government’s I-9 online pilot program. However, in addition to completing I-9s and other employer obligations, employers are required to report employees’ wage and tax data to the Social Security Administration on Form W-2. If SSA finds that an employee’s wage and tax data as reported on the employer’s W-2 does not match its own records, it will send the employer a “Social Security Mismatch Letter.” The letter itself is not an indication that an employee’s social security number is invalid, or that the employee is not in fact authorized to work in the U.S. However, employers must take action to resolve the discrepancy a specific timeframe or may be deemed to have “constructive knowledge” that an employee is not authorized to work.
Employers should contact counsel immediately upon receipt of a Social Security Mismatch letter, and should take no adverse action against an employee unless and until the matter has been discussed with an attorney.
Significant monetary and criminal penalties exist for employers, including supervisors and those involved in the I-9 process, who fail to properly complete the I-9 process, or who “knowingly” hire or continue to employ unauthorized workers.
Civil penalties range from hundreds to thousands of dollars per violation pertaining to failing to complete I-9 Forms, errors in completing I-9 Forms, and engaging in document abuse by requiring individuals to present more or specific documents in the I-9 process.
Criminal penalties can include fines for each violation for “knowingly” hiring or continuing to employ undocumented workers and imprisonment up to six months for a pattern and practice of knowingly hiring undocumented workers.
Employers may also face significant criminal penalties including extensive fines and imprisonment under other government laws such as smuggling, harboring or aiding and abetting undocumented aliens in cases of egregious violations.
E-Verify is a government program which enables employers to electronically verify new employees’ employment eligibility through cross-checking I-9 data with Social Security Administration and Department of Homeland Security databases.
Important Requirements of the Program:
- The employer must enter into a “Memorandum of Understanding” with the government, register, and complete the E-Verify Tutorial before they begin using the program
- The employer is still required to complete the standard I-9 process for all employees including completing I-9s within 3 days of hire, retaining them as required and making them available for inspection
- E-Verify can only be used after an employee is hired and after a paper or electronic I-9 has been completed. Employers may not pre-screen applicants through E-Verify
- The system must be used for all new hires and cannot be used selectively
- Like the standard I-9 process which the employer must continue to conduct, the online E-Verify process must be conducted within 3 days of hire
- Any document presented by an employee to establish identity must contain a photograph
- The Employer cannot take any adverse action against an employee based upon the employee’s employment eligibility status while the verification request is being processed unless the employer obtains knowledge that the employee is not work authorized
- If an employer receives a “final non-confirmation” of employment eligibility through E-Verify, the employee must be terminated immediately
How to Register for E-Verify
Employers can register by following the step-by-step instructions on the E-Verify website