Employers Must Be In Compliance On Their I-9 Employee Verification Forms Or Risk Substantial Fines And Criminal Prosecution
Employment eligibility verification or the I-9 form and verification process establishes for both large and small employers the ability of employees to work for your business. While some Human Resources (HR) personnel or small business owners may look at this as tedious housekeeping there are strong laws in place enforcing the maintenance of accurate and complete I-9 records.
As a rule employers must maintain I-9 records for at least three years from the date of hire and maintain complete records for the duration of employment. In theory an employer may maintain the records for only one year after termination if that occurs prior to the three years from date of hire but for simplicity and clarity officers of Immigration Customs and Enforcement (“ICE”) recommend the three-year deadline for keeping I-9's on file.
Another important tip is to maintain I-9 files separate from the main personnel file as the I-9 and anything attached to it is considered the property of the Department of Homeland Security.
Audits of I-9's by qualified personnel or an outside expert such as an immigration attorney is highly recommended as a documented effort to stay in compliance. ICE officers state that when assessing the seriousness of a violation and or application of fines they look to the level of training of HR personnel and the size of the company. The better trained and larger the company the higher the fines imposed.
All drafts of I-9s including corrected versions should be maintained in the file, and a calendar or “tickler” system for checking employment status upon expiration of employment authorization cards should be implemented.
Employers become liable for employment of unauthorized workers once they are put on notice. One such “notice” event is the receipt of a “mismatch” letter from the Social Security Administration where it points out a discrepancy between the number and the identity of the cardholder. Where there are discrepancies it is important for the employer to make inquiries to determine whether there are clerical errors, whether the employee has acquired a new social security number upon gaining legal permanent resident status, or other reasonable and correctable errors.
If it becomes clear that the employee is not the holder of the social security number and has no basis for authorized employment, the employer has legitimate grounds for terminating employment. It is also important to speak with and train management; overzealous managers have been known to instruct employees to “find” sufficient ID regardless of whether documents submitted are fraudulent. This is considered an extremely serious infraction of the law and once a pattern has been established criminal charges will be filed for all management persons considered responsible.
On the bright side ICE, through the ICE Mutual Agreement between Government and Employers (IMAGE) program encourages voluntary compliance and even provides on-line verification of employment authorization for new hires after the Employer has enrolled in the program. This is a powerful and useful tool for Employers who want to maintain every appearance of compliance with the law.
Employers and HR departments in particular should consider an outside audit, and implementation of reliable procedures and policies to maintain I-9 compliance. Qualified law firms regularly provide these services, relieving management of a serious and legitimate concern with regard to their employment practices.
Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.
A similar version of this article may have been published in the Asian Journal.