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I-9 Compliance Tips for Small Businesses

On April 20, 2006, the Department of Homeland Security announced its Comprehensive Interior Immigration Enforcement Strategy for the Nation. The second goal of this initiative is to create robust workplace enforcement and compliance programs to detect illegal employment in the United States.
Immigration and Customs Enforcement (ICE) has undergone a strategic shift from imposing administrative penalties and fines to seeking out and punishing employers who know about and receive illegal aliens by filing criminal charges. against employers and administrators who complete employment eligibility forms.

In the past, employers had little fear of arrest and administrative fines were nominal and considered a cost of doing business. In 2003, only 124 tickets were issued. Last year, in a single ICE worksite enforcement investigation, a $15 million settlement and forfeiture was negotiated. Last week, an investigation that began more than a year ago resulted in the arrest of 1,187 people on administrative immigration charges, and seven criminal complaints were filed against managers or former managers for alleged criminal violations related to the hiring of illegal and undocumented aliens. . The charges in the criminal complaints allege harboring aliens for illegal advantage and, in two cases, document fraud. The Administration’s fiscal year 2007 budget requests an additional 171 officers and $41.7 million in new funding to enhance workplace compliance efforts.

You may be wondering, what does that have to do with my business? I do not hire illegal aliens. Most employers do not knowingly hire illegal aliens and will comply with the Immigration Reform and Control Act of 1986 (IRCA) and do not need to worry about criminal charges like money laundering or harboring an alien to gain an illegal advantage. However, if you are in the hospitality, construction, landscaping, or farming business, you may be subject to a workplace compliance inspection. Recklessness charges have been filed for employers who are careless or negligent in their employment practices. Missing or incomplete I-9 forms can result in fines between $600 and $800 per form and missing forms can result in an additional fine of about $1,500 per form (can be as high as $10,000) for knowingly employing an ineligible person . (ICE assumes people without forms are illegal.)

All employers must conduct regular audits of their I-9 forms and regularly review the practices of those responsible for hiring and completing paperwork for new employees. Employers are not expected to be document experts, but someone presenting a social security card with the number 000-00-0000 should be suspicious. As an employer, you may not use photocopies of employment eligibility or identity documents, with the exception of a certified photocopy of a birth certificate. You may make a copy of the documentation provided and keep it with the completed I-9. This can come in handy later as you complete your audit, in case you filled in the information incorrectly on the I-9. Please note that if you keep copies for one person, you must keep copies for all employees.

You are not allowed to tell an employee what documents to provide for verification of employment eligibility. It is good practice to include a copy of the “List of Acceptable Documents” with your offer letter. Instruct the employee to provide one document from List A or one document from List B PLUS one document from List C on the first day of employment. An employee must prove her eligibility to work within three business days of being hired or risk being fired. If an employee has lost one of her documents, he can accept a receipt for a replacement document (lost, stolen or destroyed), within the first three business days. An employee then has up to 90 days from the first date of employment to produce the actual documents. Set up a tickler file for 30, 60, and 90 day follow-ups with the employee.

Make sure you have completed the Employer Review and Verification section of Form I-9 within three days of your first day of employment. Your signature and date must be within three days of the employees start date or you could be subject to an administrative fine. Fines range from $100 to $1,100 per paperwork violation. It is best to complete all hiring paperwork on the same day as the employee. It will save you time, money and questions later.

After you complete the I-9 forms, you must store them in a location that allows you to produce them within three days of an official request to produce the documents for inspection. If you have a significant number of employees or multiple sites, you may want to consider storing I-9 forms in a central location in alphabetical order. You are not required to do this and may, if you wish, store them in the employee’s personnel file. This makes it more difficult to self-audit internal I-9s or quickly pull documents, but it is allowed.

I-9s must be kept for at least three years from the date of hire or one year after termination, whichever is later. You can dispose of outdated I-9 forms. If you have any questions, consult an expert, such as an immigration or employment law attorney. If you rehire an employee within three years from the date the form was first completed, you may complete Block B and the signature block in Section 3 of the original form.

If you have decided to audit your company’s I-9 forms, here are some suggestions:

1. Generate a list of all employees hired since November 6, 1986. The list should contain the employees name, social security number, date of hire, and date of termination. Identify former employees whose termination date falls outside the required retention period. Those I-9 forms can be thrown away. Have someone else review your calculations before discarding any I-9s.

2. Verify that you have an I-9 for each person on your list.

3. Check each I-9 for missing signatures, unchecked status boxes, information recorded in the wrong space, missing or incorrect dates.

4. Make necessary corrections or request the employee to submit missing information.

Auditing your I-9 files and making any necessary corrections will help demonstrate good faith compliance with the IRCA and may reduce the risk of severe penalties.

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