In continuation of our blog on March 13, 2013 regarding the revised Form I-9 employers must keep, we are providing this follow-up blog to inform our readers about the consequences employers may face with this form. As a reminder, Form I-9 must be completed for every new employee hired by U.S. employers and certain agricultural recruiters and referrers for a fee (all together “Employers”) within the first day of employment. The purpose of this form is to verify the identity and employment authorization eligibility of each employee. In other words, this form is intended to help Employers hire only those authorized to work in the U.S. In filing out this form, Employers should examine employee’s documents such as a U.S. passport/card, a permanent resident card, an employment authorization document, and the like (for a full list of documents please go to http://www.uscis.gov/files/form/i-9.pdf, specifically page 9). While Employers need not make a copy of these documents, it is suggested that copies be made as evidence Employers hired a lawful worker. Where Employers “knowing hire” (defined as actual and constructive knowledge) or continue to employ an unlawful worker they may be fined (between $110 – $1,110), be subject to cease and desist orders, be criminally prosecuted, and/or be subject to debarment from federal contracts.
Employers are to complete Section 2. Failure to do so is a violation of the regulations (8 C.F.R. 274a.2(b)(3)). Making a copy of the documents provided by the employee does not fulfill this regulation and does not relieve Employers from liability for a substantive paperwork violation.
The retention of this form becomes relevant when U.S. Immigration and Customs Enforcement (“ICE”) audits Employers. There are no triggers to being audited therefore it is imperative to have Form I-9 fully completed for each employee. Violations are classified as either technical or substantive. Technical violations are those which are minor or unintentional, while substantive violations are for major violations. If a technical violation is discovered, Employers are given notice and ten (10) business days to correct the error. If time passes and the correction is not made, Employers will be fined.
Additionally where paperwork penalties are present, they may be litigated or negotiated. Although ICE has broad authority and discretion on assessing penalties, the Office of the Chief Administrative Hearing Officer (“OCAHO”) is not bound by ICE’s decision. As such, if Employers do not agree with ICE’s decision, they should request a hearing with OCAHO.
It is strongly recommended that Employers be thorough in checking the work authorization of each employee and complete Form I-9 on the employee’s first day of employment as audits are random and have no triggers. If further information is needed on Form I-9
Associate, Elizabeth Oaxaca