The completion and filing of the Form I-9 is one of the most basic regulatory requirements that small businesses adopt when they begin growing their workforce. Its purpose is to verify the identity and legal information of each employee. The I-9 employment form is legally required for all employed workers in all fifty states of the USA. Without the I-9 form there would be little to no restriction on who you could employ and it would also significantly increase the risk of workers’ rights violations by employers.
The Immigration Reform and Control Act of 1986 (IRCA) requires all employers located within the USA to verify the identity, citizenship status, and eligibility of all employees employed after the year of 1986. IRCA states that three integral steps must be completed in order to legally employ a worker. The employer must oversee the completion of the I-9 form. They must acquire and retain each employee’s documents. They must not discriminate against any employee based on information learned during in the hiring process.
Verification is an essential step in the employment process. An employer who hires an unverified worker and knowingly continues their employment can be subjected to legal action if caught. Commonly, an employer found guilty of knowingly employing an unverified worker could be subjected to a fine of anywhere from $583 to $23,331 for each individual unverified worker. If an employer is found to be practicing continuous employment of unverified workers, they could be subjected to further legal action. They could face additional fines for each individual unauthorized worker, as well as jail time.
In order to lawfully complete the hiring process, an employer needs to first ensure that the employee has completed and signed all sections of the I-9 Form before their first day of work. Failure to do so will classify the worker as unverified and therefore illegally employed. The employer must also acquire and review documents of identification from the employee and verify that they are genuine and related to the employee. Employers must also complete and sign section II of the I-9 verification form before the 3rd day of employment. Employees whose time with the company is less that 3 days must have section II completed on the 1st day. Employers must also be sure to reverify each of their employees when their respective expiration dates arrive.
An employer who fails to properly complete and maintain the I-9 Forms of their employees runs the risk of legal action and civil penalties. Failure to complete a form is one such failure. Completing and maintaining an I-9 incorrectly is also considered an employment error and could result in a civil penalty. Penalties can also incur through a late completion of the form, destruction of the form before the necessary time, and filling out and filing an outdated version of the I-9 employment verification form. Civil penalties that may be levied at an employer for any of these mistakes will hover from $234 and $2,332 for each infraction.
It is the duty of the employer to retain the physical document or a subsequent photocopy for each of its employees. Even after termination, the employer is required by law to retain a copy of the ex-employees I-9 Form for either one year after termination or 3 years after initial employment. It is also very important that employers store all I-9 Forms in an organized manner, separately from the employees personnel file.
Under the IRCA, employers are strictly prohibited from discriminating against their employees in any way. It is illegal to discriminate against any employee for their citizenship status or ethnic origin. It is also strictly prohibited to threaten, scare, or attempt to restrict an employee’s right to a discrimination free workplace. Overdocumentation of an employee is also strictly prohibited as it can be classified as harassment or document abuse. An employer who fails to abide by these laws will be subjected to one or more of the following penalties. They may receive a cease-and-desist order to stop the discriminatory practice, if the abuse continues, they may be subjected to further action. Further action includes cut wages, back pay, and attorneys’ fees. For discrimination regarding citizenship or national origin, the penalty fine ranges from $481 and $19,277 for each individual employee that is discriminated against. The fine for document abuse is less, however it is still quite substantial.
E-Verify is a virtual employment verification system managed by both the Department of Homeland Security (DHS) and the Social Security Administration (SSA). E-Verify is mandatory for certain federal contractors and sub-contractors. E-Verify is also mandatory for all employers in select states. It is an optional, but available resource for all employers around the country and certainly adds an extra level of safety in the employment process. Employers must ensure that their new employees have completed all subsequent steps during the onboarding process within the first 3 days of employment. Also, within the first 3 days, employers must also obtain the employees social security number (SSN), create and enter the employee into E-Verify using the employees SSN and I-9 Form, and track the E-Verify case in tandem with the I-9 Form. After submitting the I-9 Form for review, the employer will receive one of three responses. The employee is authorized to work, the DHS needs more time to review the form, or a Tentative Non-Confirmation (TNC) that the SSA or DHS records cannot confirm the employee’s SSN or employment authorization.
If the employer receives a notice on Tentative Non-Confirmation (TNC) they must first notify the employee as soon as possible. Next the employer must print and review the TNC with the employee in question. Then the employer should review all the employee’s information submitted to E-Verify and on the I-9 Form. The employer then should ask the employee if they will contest the TNC, indicate the employee’s choice on the further action notice, and, with the employee, sign and date the notice. Finally, the employer should retain the original copy of the TNC and then provide the employee in question with the contention notice and advise them on how to take further action. The SSA and DHS have up to ten days to update and confirm information in E-Verify after submitting a TNC. If the employer receives a final non-confirmation, it may terminate the employee. If the employer continues to employ the worker, it may be subject to an investigation. Finally, after receiving the final version of the E-Verify submission, the employers should detail what action the employee should take next.