Employment Eligibility Verification

Is your company prepared for an I-9 audit?

Since 1986, federal law has required all employers to verify the employment eligibility of their workers. Regardless of the size of the employer and regardless of the nationality of the employee, employers are required to complete and retain the Employment Eligibility Verification Form, or Form I-9, in strict compliance with the law.

Since the I-9 requirement was first enacted, enforcement has varied. In some years, the number of on-site inspections, audits and imposition of fines has been up; in other years, it has declined. At the present time, perhaps as part of the Administration’s effort to enact comprehensive immigration reform, the number of I-9 enforcement actions is rising steeply.

According to reports, Immigration and Customs Enforcement (ICE) is seeking to increase employer compliance across all industries by substantially increasing the number of I-9 audits and on-site inspections. As one part of its “fight against illegal immigration”, the government has announced plans to triple the number of workplace inspections, and to increase its commitment to a “worksite enforcement strategy.”

Although the “worksite enforcement strategy” is primarily aimed at employers who hire undocumented workers, it also strikes unforgivingly at employers who fail to complete and retain the Form I-9 in strict compliance with regulations. Examples of recent enforcement actions include:

  • Pegasus Restaurant, a restaurant in Colorado, paid a fine of $49,427 (reduced from $131,554) for failing to fill out I-9’s for 134 employees over a three-year period;
  • Ice Castles Daycare Too was sanctioned with a fine of $18,500 (reduced from $55,352) for failing to properly prepare I-9s for 74 employees, also over a three-year period;
  • Alyn Industries, an electronics manufacturing firm, paid fines of $43,000 for failing to properly complete, sign, date and retain Forms I-9;
  • Snack Attack Deli, Inc., a Subway franchisee, was charged with a long list of I-9 violations and assessed fines of $27,150, reduced from $111,000;
  • Stanford Sign & Awning, Inc., a sign manufacturing and awning business, was assessed fines of over $12,000 for “errors and omissions” in completing and retaining Forms I-9;
  • Four Seasons Earthworks, Inc., a family-owned general contractor, was fined $9,500 for failing to properly complete Section 2 of the I-9 form.

Please note that the fines in these cases did not arise from hiring undocumented workers; rather the fines were assessed for failing to comply with regulations relating to employment eligibility verification and records retention – in other words, paperwork violations. Fines were assessed not only for failing to complete the forms, but also for failing to complete forms in a timely manner, failing to sign and/or date forms or failing to retain forms as required by law.

At the Law Office of Matthew I. Hirsch, we want to help businesses comply with the law and avoid costly penalties. Employers should know that:

  • All employers, whether big or small, whether private of public, whether for-profit or not-for-profit, are required to have an Employment Eligibility Verification form, the Form I-9, for every employee. There are no exempt employers and no employee is exempt from this requirement.
  • The I-9 must be completely filled in and signed within three (3) days of the commencement of employment.
  • The form must be complete; that is, all of the data fields must be filled in, the form must be signed and dated by both the employer and the employee, and the employer must actually see the birth certificate, social security card, passport, alien registration card, or other document(s) which prove authorization to work.
  • The I-9 must be updated from time to time. Failing to have a current, valid, unexpired driver’s license, passport, government-issued employment authorization document, alien registration card (green card) or other document to support the I-9 is a paperwork violation.
  • Employers must retain original, signed Forms I-9 for three years from the date of hire or for one year after termination of employment, whichever is later.
  • Employers are not required to keep copies of supporting documents with the Forms I-9; but if the employer does make and keep copies, it must do so for all employees.

Failing to comply with requirements associated with the Form I-9 can result in fines of between $110 to $1,100 per violation; fines for employing undocumented workers are much higher.

For these reasons, all employers need to be familiar with rules governing employment eligibility verification, the Form I-9 and its procedures and about immigration-related discrimination. Employers should designate a person within the organization to act as the I-9 coordinator and that person should be trained in I-9 compliance and tasked with collecting the I-9’s, verifying employment eligibility and maintaining the company’s records in compliance with government regulations.

At the Law Office of Matthew I. Hirsch, we can answer your questions regarding the law and regulations and we can assist your company’s I-9 coordinator to implement “best practices” for I-9 compliance. In the event that your company is selected for an audit or worksite inspection, we can provide both legal and practical advice on how to respond. With planned increases in worksite enforcement, there has never been a more crucial time to ensure your company’s full compliance with employment eligibility verification. Please contact us.