US I-9 Compliance is No Joke – What You Should Know

On April 27, 2021, we will be hosting a webinar on I-9 compliance and effective I-9 programs for any company employing personnel in the US. Please join us – you can register by clicking here.

In what has become a common occurrence, US Immigration and Customs Enforcement (ICE), the domestic enforcement arm of the US Department of Homeland Security, conducted a raid of a Texas cellphone refurbishing company, arrested 280 workers, and began criminal investigations into company management. 

After years of decline under previous administrations, both I-9 raids and arrests by US Immigration and Customs Enforcement (ICE) climbed to an all-time high in 2019 under the Trump administration. And, while the ICE raids and audits decreased slightly in 2020 and Q1 of 2021 due to COVID-19, we expect to see a sharp increase in I-9 compliance efforts by ICE in the latter half of 2021 and in the years to come.

What is I-9 Compliance?

In the US, all employers are required to properly complete the I-9, Employment Eligibility Verification Process (see https://www.uscis.gov/i-9) for all newly hired personnel, regardless of citizenship or immigration status. This process includes the review of each newly hired employee’s original documents evidencing identity and employment authorization.

For whom must an I-9 be completed?

The I-9 process must be completed for every employee of the US employer, regardless of the employee’s citizenship, nationality, or work authorization. This is true even if an employer assumes or believes that all employees are US citizens. 

When must the I-9 process be completed?

Within three (3) business days of an employee’s start date, the employer and employee must complete the I-9 process. Failure to do so may result in civil penalties as is described in more detail below.

In some instances, including for employees who have temporary work authorization, the I-9 may need to be reverified at a later date or dates.  This would include those who indicate that they are “An Alien Authorized to Work” on the first page of the I-9 form. 

What is an I-9 program?

An effective I-9 program is aimed at compliance and mitigation or elimination of any risk for noncompliance. To be effective, an I-9 program must include proper training by legal counsel of company personnel who will complete the I-9 process with employees, regular and systematic internal and external audits, and proper training for filing and retention of I-9 forms.

As requirements for the proper completion, reverification, storage, and retention of I-9 form are highly technical and can result in a range of civil and criminal penalties for both substantive violations and paperwork errors, a proper I-9 compliance program is essential for all US employers.

What are the penalties for noncompliance?

Even if an employer does not hire anyone ineligible for employment in the US, errors on I-9 forms can result in civil penalties. Those that knowingly employ individuals without employment authorization, including those that “should have known,” have been increasingly subject to civil and criminal penalties, including potential prison sentences and forfeiture of any and all assets with a reasonable nexus to the employment of persons without authorization.

Generally, civil penalties, including fines, debarment from government contracts, back-pay or forced hiring of individuals who may have been discriminated against, can result from the following violations:

• Knowingly hiring, or to have knowingly recruited or referred for a fee, an undocumented worker for employment in the US or to have knowingly continued to employ an undocumented worker in the US;
• Failing to comply with Form I-9 employment verification requirements;
• Committing or participating in document fraud for satisfying a requirement or benefit of the employment verification process or any other immigration law or regulations;
• Committing document abuse;
• Unlawful discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee;
• Failing to notify DHS of a Final Nonconfirmation (FNC) of an employee’s employment eligibility; and
• Requiring an individual to post a bond or security or to pay an amount or otherwise to provide financial guarantee or indemnity against any potential liability arising under the employment verification requirements

Furthermore, criminal penalties are increasingly being levied against company owners, directors, and personnel responsible for the I-9 program for engaging in a pattern or practice of hiring, recruiting or referring for a fee undocumented workers. Again, this can be based on “constructive knowledge” and failure to complete the I-9 process has been deemed constructive knowledge for which individuals have faced criminal penalties.

In conclusion, as penalties can be applied to employers who have made errors on I-9 forms, regardless of whether there was any actual unlawful employment, it is imperative that US employers ensure their I-9 compliance program is compliant with all I-9 regulations and ready for review by ICE.

On April 27, 2021, we will be hosting a webinar on I-9 compliance and effective I-9 programs for any company employing personnel in the US. Please join us – you can register by clicking here.