I-9s, Expired Forms and Fines, Document Retention and Best Practices
Immigration enforcement activities against employers have increased significantly under the Trump Administration. This activity is consistent with the Administration’s Buy American and Hire American executive order, which seeks to protect U.S. workers by rigorously enforcing immigration laws. As a result, worksite enforcement activities, including site visits, investigations and audits of businesses by Immigration and Customs Enforcement (ICE), have significantly increased.
Employers are required to verify the identity and employment eligibility of all employees hired in the United States by completing and retaining a Form I-9 Employment Eligibility Verification for each employee. Employers are also required by law to maintain for inspection original Form I-9s for all current employees. I-9s must be retained for up to three years from the employee’s date of hire or for one year after employment ends, whichever is later.
The penalties for failing to comply with I-9 regulations vary depending on the type of violation. For “paper violations,” which include failing to produce a Form I-9, or failing to check a box or to enter a date, the employer is subject to civil penalties ranging from $230 to $2,292 per violation. For knowingly hiring or continuing to employ an individual who is not authorized to work in the United States, the fines range from $575 to $20,130 per violation. If there is a “pattern or practice” of violations, criminal penalties may also be imposed.
Ensuring complete compliance with I-9 regulations is essential in minimizing potential exposure. Some best practices for I-9 compliance include the following:
- Complete Form I-9 for all new hires: Employers must treat the proper completion of the Form I-9 as a serious matter. Failure to timely complete a Form I-9 is considered a substantive violation that can subject an employer to civil penalties. All new hires must complete an I-9 no later than the first business day of employment, and they must present employment verification documents no later than the third day after beginning employment. A best practice would be to require submission of all documents by the first day of work. Employers must also ensure that current employees have completed Forms I-9 on file.
- Retain and store I-9 records separately: I-9 forms should be maintained separate from employee personnel files and stored securely onsite or electronically for ease of access to the records in case of a worksite visit by ICE. Responsibility for completing the Form I-9 and retaining the records should be assigned to designated personnel within the organization, and only the designated personnel should have access to the stored forms. As already noted, employers must retain Form I-9s for three years from the date of hire, or one year following the termination of employment, whichever is later.
- Retain and store I-9 records separately: I-9 forms should be maintained separate from employee personnel files and stored securely onsite or electronically for ease of access to the records in case of a worksite visit by ICE. Responsibility for completing the Form I-9 and retaining the records should be assigned to designated personnel within the organization, and only the designated personnel should have access to the stored forms. As already noted, employers must retain Form I-9s for three years from the date of hire, or one year following the termination of employment, whichever is later.
- Conduct internal I-9 audits: Periodic internal audits of I-9 records ensure compliance by allowing employers to identify incomplete or missing I-9s and correct any omissions or discrepancies before a worksite visit or investigation. Employers may review all I-9s, or a sample of I-9s selected based on neutral and non-discriminatory criteria. If only a sample is audited, the sample should not be based on the citizenship status or national origin of the employees selected.
- Do not request specific documents for Form I-9: An employer must review the documents provided by the employee for employment verification and to determine whether the documents reasonably appear to be genuine. Employers should not request specific documents from employees if the presented documents are legally sufficient. A good practice would be to make the List of Acceptable Documents available to the employee when completing the I-9 and to let the employee decide on which documents to present for employment eligibility verification. Documents provided by the employee should be originals and unexpired. The employer representative or agent signing the I-9 must personally review the original documents and retain copies of the supporting documents with the I-9.