5 minute read
The Critical I-9
BY ANITA DOMBROWSKI, MBA, SPHR, SHRM-SCP, PRESIDENT & SR. HR CONSULTANT, FOURTH DIMENSION ENTERPRISES LLC.
New Hire forms are an essential part of your onboarding process and it seems every government agency needs a form. While all the forms are important, the I-9 form (www.uscis. gov/i-9) is critical. The form is used to verify the identity and employment authorization of individuals hired for employment in the United States. The agency responsible for the I-9 form is the U.S. Citizenship and Immigration Services Agency (USCIS). The I-9 form must be completed by U.S. employers of all sizes. Employers must have an I-9 form on file for each employee on their payroll. There are very strict guidelines on how the form must be completed. There are 15 pages of instructions online. There is also a more detailed book of instructions outlining the requirements. The Handbook for Employers: Guidance for Completing Form I-9 (M-274) can be found at www.uscis.gov/i-9-central/ handbook-employers-m-274. The booklet is extremely helpful to identify some of the proofs you might be witnessing.
Some helpful tips:
Both the employee and the employer have sections to complete. USCIS requires the employee to complete his or her section on Day One of employment. The employer has a maximum of three (3) days to complete their section. While there's a form listed on the website in Spanish, only employers in Puerto Rico may file the Spanish form. Forms must be completed in English. However, the Spanish version may be used to assist a nonEnglish speaking employee to better understand the information requested. If the employee is having a hard time understanding what's required, a translator can be used. There's a section on Page 1 for the translator information to be added. The I-9 is a three (3) page form. The instructions specify all three pages of the form must be given to the new hire. Page 3 of the form outlines all of the authorization proofs employees are permitted to use. The list is very specific. There's an A List, B List, and C List. Employers should be sure to enter the proof information in the proper columns. For instance, Column A is for a U.S. Passport. Column B is for the Driver’s License proof, and Column C is for the Social Security card information. Most employees use a driver’s license and Social Security card as their authorization proofs. Speaking of proofs, the employer or employer's representative must look at and review the original proof document. You can't use a copy of a birth certificate, Social Security card, or any other of the listed proofs. The employer or employer's representative should examine each of the proofs to determine if the proofs look reasonably genuine and relate to the description of the approved proofs listed on the form. The person who reviews the proof is the person who should sign the form. While these details may seem "over the top" to you, they're critically important. Employers who violate the law and either don't have I-9’s on file for every employee or have been careless in how the forms are completed should take heed. Civil and criminal fines may be assessed.
According to the U.S. Customs and Immigration Enforcement (ICE) website “Monetary penalties for knowingly hiring and continuing to employ violations range from $573 to $20,130 per violation, with repeat offenders receiving penalties at the higher end.
Penalties for substantive violations, which includes failing to produce a Form I-9, range from $230 to $2,292 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good-faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.” www.ice.gov/factsheets/i9-inspection Once completed, the forms don't need to be sent to any agency. Keep them in your employee’s personnel file. USCIS recommends that you keep a separate I-9 form file which is much easier to keep up to date. Also, should government agents come to your facility to inspect the I-9 information, you'll have it readily available for inspection. Officials from the U.S. Department of Homeland Security, the U.S. Department of Labor, or the U.S. Department of Justice may call on you to review your forms. Retention of the forms is also a critical issue. Don't destroy a form as soon as an employee leaves your employment. You must retain the forms for three years after date of hire, or for one year after employment is terminated. Most employers find it easier to pull a terminated employee’s I-9 form and place it is a separate folder for separated employees. It doesn't matter whether the employee resigned or was terminated. All forms for separated employees go into that Separation File which can be filed by year of separation. That makes it easier to purge the file once the one year mark is reached. It's a good idea for employers to do an audit of I-9 forms on file to make sure there's a form for each employee on payroll and to make sure each form is completed properly e.g. signatures in all places required and appropriate forms are not expired. Some work authorization proofs have an expiration date which must be monitored. Many employers don’t pay a lot of attention to the I-9 form which could be a major headache if agents come knocking at your door. Seeing the list of penalties demonstrates the I-9 form is critical to your organization.
This article should not be considered legal advice. Should you have any questions about this article or any of the HR articles presented in this newsletter, please do not hesitate to contact me at AnitadombrowskiHR@gmail.com.
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