Home Blog Guidelines to be followed to make yourself free from I-9 compliance violation

Guidelines to be followed to make yourself free from I-9 compliance violation

Posted July 09, 2018 - Avinash

In the current scenario, most of the small business owners focus more on hiring talent in short span of time to expand their business. Which is good, but it often comes at the cost of being compliant with the required regulation.

As a norm, when a new employee is hired, it is the employer’s responsibility to verify if the candidate is legally eligible to work in the United States. Which is where Form I-9 compliance comes into place. Most companies are noticing the increased frequency of DOL audits on Form I-9 Compliance & worried on monetary penalties for this compliance violations; ranging from $375 to $16,000 per violation.

 

Basic Form I-9 inspection process: 

i9 compliance

 Let’s understand more on how an employer can be in compliant with this Form I-9 regulation and few tips to be followed while filling the form.

 

What is form I-9?

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States as mandated by the Immigration Reform and Control Act of 1986. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. Both employees and employers (or authorized representatives of the employer) must complete and sign the form. An employee can present acceptable documents evidencing identity and employment authorization. This includes citizens and noncitizens.

All form I-9’s of the organization must be available for inspection by an Immigration and Customs Enforcement (ICE) officer upon request.

 

Steps to in filling form I-9:

Section-1:

Once the offer is accepted by the employee, Section-1 needs to be completed by him/her on or before the first day of employment for pay.

  • The employee should provide Name, other Last names, Address and Date of birth along with Providing his/her SSN number (only if his/her employer participates in E- Verify).
  • The employee should attest to his/her Citizenship or Immigration.
  • If an Employee is Alien Authorized to work:
    • He/she should give the date on which the Employment Authorization ends (if applicable).
    • He/she should submit Alien Registration number / USCIS number or Form I-94 Admission number or Foreign passport number with Country that issued the Foreign passport.
    • Lawful permanent Residence should give his/her Alien number or USCIS number
  • The employee can take help of a preparer/ Translator to complete Section-1. The Preparer/translator should also provide his/her name, address, signature and signed date.
  • The employee should also Sign his/her Section-1 with signed Date.

Employers must review and validate the information that the employee has provided in Section 1.

Completing Section-2:

Section 2 must be filled by the employer no later than three business days of the employee’s first day of work for pay.

  • The Employer must enter the employee name and Citizenship or Immigration status employee mentioned in section-1.
  • The Employee must present the employer with unexpired original documents that show identity and employment authorization. Employee chooses which documentation to present.
  • An employer cannot specify which documents needs to be submitted by the employee to avoid unlawful discrimination.
  • An Employee can give List A or List B and List C supporting documents
    • List A documents will establish both Identity and Employment Authorization
    • List B documents will establish Identity
    • List C documents will establish the Employment authorization
  • In Certification section, Employer needs to add the date of the First day of Employment Authorization and his/her title and address, sign the Section-2
  • After Completing Section -2, Employer should get E-verify certified by USCIS.

Section 3 – Re-Verify:

Employers must complete Section 3 when  employee’s employment authorization or documentation of employment authorization has expired (“reverification”)

  • If the employee is rehired within 3 years of the date that Form I-9 was originally completed.
  • If there is any change in candidate’s legal name.

 

Some DOs and DON’Ts to remember while filling Form I-9:

 DOs:

  • Employee must complete Section 1 by end of his/her first day of work for pay.
  • Employer should complete Section 2 within 3 business days following employee’s first day of work for pay.
  • Employee must be physically present at the location while verifying original documents.
  • The employee can provide any acceptable documentation in accordance with the provided list of Acceptable Documents
  • Employer must keep Form I-9 for three years after the date of hire or for one year after employment is terminated, whichever is later.
  • I-9’s should be stored in a separate file, not in the employee’s personnel file or PAF.

DON’Ts:

  • Need to complete Form I-9 for independent contractors.
  • Ask an applicant to complete an I-9 prior to making a job offer. If the applicant is not hired, they may claim national origin or race discrimination.
  • Request more or different documents that are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others.
  • Ask new hires for any particular documents or for more documents than the I-9 requires. The Employer shouldn’t specify documents to present.
  • Accept copied or expired documents for Section 2. Employee must provide valid documents.
  • Allow an employee to work until they have completed Section 1 OR allow an employee to work beyond the third day of services until they have provided the appropriate documentation and the employer have reviewed and signed Section 2.
  • Discriminate against individuals on the basis of national origin, citizenship, or immigration status.
  • Hire, recruit for a fee, or refer for a fee unauthorized aliens they know to be unauthorized to work in the U.S.

 Penalties for Violations:

Employers with knowingly hire or continuing to employ violations shall be required to cease the unlawful activity and, may be fined. The agent or auditor will divide the number of knowingly hire and continuing to employ violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage. 

Knowing Hire and Continuing to Employ Violations First Time $548 – $4, 384 Second Time $4,384 – $10,957 Third Time
$6,575  $21,916
0% – 9% $548 $4,384 $6,575
10% – 19% $1,140 $6,322 $8,547
20% – 29% $1,754 $7,232 $11,177
30% – 39% $2,411 $8,174 $13,807
40% – 49% $3,069 $9,094 $16,568
50% or more $3,726 $10,026 $19,242

 

Penalties for Substantive and Uncorrected Technical Violations: 

Substantive Verification Violations 1st Offense
$220 – $2,191
2nd Offense
$220 – $2,191
3rd Offense +
$220 – $2,191
0% – 9% $220 $1,096 $2,191
10% – 19% $548 $1,315 $2,191
20% – 29% $876 $1,534 $2,191
30% – 39% $1,205 $1,753 $2,191
40% – 49% $1,534 $1,972 $2,191
50% or more $1,862 $2,191 $2,191

 

 

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