E-Verify & I-9: Avoid This Costly Mistake

E-Verify & I-9: Avoid This Costly Mistake

At the end of April, staffing company Golden Employment Group was ordered to pay $209,000 in civil penalties for 465 Form I-9 violations. Golden Employment receives between 2,000 and 3,000 applications a year, and has over 20,000 people in their database. They began using E-verify in 2008 to verify employees’ employment eligibility with the Department of Homeland Security and the Social Security Administration. What they failed to do for all employees was fully complete Form I-9 when an employee’s eligibility for employment was verified by E-verify.

That proved to be a costly mistake.

And it’s going to be even more expensive for companies who are not I-9 compliant beginning August 1, 2016.
In April of 2013, Golden Employment received a “Notice of Inspection” from Immigration and Customs Enforcement (ICE), requesting that the company provide Form I-9s for review within five days. On April 15, Golden Employment provided four boxes of I-9s, and submitted additional I-9s in May and June. ICE treated these later submissions as “untimely.”

All employers are required to complete and maintain Form I-9s for every employee. Failure to do so can result in significant fines. When determining the level of fines, the courts consider the following five factors:

  1. The size of the employer’s business
  2. The employer’s good faith
  3. The seriousness of the violations
  4. Whether the individual in question was an unauthorized alien
  5. The employer’s history with previous violations


In the Golden Employment case, ICE recommended a fine of $605 per violation because it found that the rate of errors was 35% within the I-9s it reviewed. It also considered the size of the company as a mitigating factor. It did not take into consideration the submission of the late I-9s, which Golden Employment asserted that they incorrectly excluded.

The bottom line is that E-verify does NOT replace the employer’s obligation to fully complete and maintain Form I-9s for each employee.

In fact, failure to do so is about to get more expensive since the fines are increasing as of August 1, 2016. According to the Department of Justice, the minimum fine for employing undocumented individuals will increase from $375 to $539, while the maximum will go from $3,200 to $4,313. Employers with multiple violations may face a new maximum penalty of $21,563.

The new rule also addresses paperwork violations related to I-9 verification documentation. The maximum penalty will increase from $1,100 to $2,156. Unfair immigration-related employment practices may receive a top penalty of $3,563 per charge.

The regulation takes effect on August 1, 2016, but will apply to violations that took place any time after November 2, 2015.

It’s more important than ever that you have strong Form I-9 procedures. On average, about half of all I-9 forms have some sort of errors. Most errors are fairly common and easily avoidable, including the most common:

  • Late completion of the I-9 form. Section 1 must be completed on or before the first day of hire. Section 2 must be completed by end of the fourth day of hire.
  • Using an incorrect version of the form. The newest I-9 version is dated 3-8-2013.
  • No signature or incomplete document information, such as missing the date employment began, missing the name and of employer or date of employee’s execution of the form. For electronic versions of this form, Section 1 cannot populate from other areas (like candidate software). The most common error in Section 2 is failure to complete the Document Title Issuing Authority, Document Number and Expiration Date (if applicable).
  • I-9 form not produced in its entirety — both sides of the I-9 must be reproduced.
  • Instruction sheet is missing.
  • Documents are accepted that contain deletions, like an unsigned social security card.
  • White-out is used on the form. White-out is not permitted. If a mistake is made, place a line through the incorrect information, place your initials next to the incorrect information and provide the correct information.


To avoid mistakes — as well as fines during audits — we’ve compiled a list of tips to help you have a strong I-9 procedure in place:

  1. Don’t be afraid to help employees fill out Section 1. You can avoid a lot of errors by questioning employees if you see them filling out something incorrectly in this section.
  2. Purge and destroy I-9s after the proper timeframe: after three years or one year after termination, whichever is longer. By keeping old I-9s, you are opening yourself up to additional liability and possible fines if you are audited.
  3. Be sure to document your hiring procedure as it relates to the use of the I-9 form.
  4. Do not keep I-9 forms in the employee file. This makes it harder to purge forms as they are no longer needed.
  5. Be sure to make copies of supporting documentation.
  6. For remote employee, oftentimes people hire an agent to complete Section 2 of the I-9. The person signing Section 2 must be the person who physically reviewed the supporting documents.
  7. Do NOT ask for immigration status.
  8. You cannot ask for a green card or social security card. Nor should you accept more documentation than is necessary or tell the employee which documents they are to provide.
  9. You must treat each person the same: ask the same questions in the same way to everyone.

If you want to ensure your Form I-9 practices are up to date, you may want to review Tricom’s Industry Insider webinar, Form I-9: Assuring Proper Completion and Storage, presented by Vonnie Johnson from the Department of Homeland Security. The webinar covers completing Form I-9, acceptable documentation, tips on correcting mistakes, storage and retention. By the end of the session, you’ll know all the steps to complete and store Form I-9 with confidence (and avoid costly fines). You can view the complete webinar by clicking here.

Sources:
http://www.lexology.com/library/detail.aspx?g=244b493e-d2d8-4f75-858b-87bcbcaf23e6&l=7RV7R3M
http://www.lexology.com/library/detail.aspx?g=43d2ee25-0818-4383-aac7-bf4623225157

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