Hiring legal immigrant workers continues to be a challenge for business owners we meet. Employers are responsible for not hiring illegal immigrants while simultaneously not discriminating against legal immigrants. Employers submit pertinent immigration information to the government through Form I-9. It is critical that employers understand the purpose and the mechanics of this form, as well as the likely consequences of non-compliance. As always, we are here to help if you have any questions, or keep reading to learn more.
| Under the Immigration Reform and Control Act of 1986, U.S. employers may hire only citizens and nationals of the U.S., and those aliens who are authorized to work here by appropriate visas. Employers must fill out a Form I-9 for each new hire within three days. I-9s must be kept for at least three years, or for one year after employment ends, whichever is longer.
In recent years, the Immigration and Customs Enforcement (ICE) agency has targeted industries such as food service, agriculture, and construction for audits. The resulting fines from an audit can range from $110 to $16,000 per incident, depending on:
- size of your company
- seriousness of the offense
- your company’s history
- whether you show a good faith effort to comply
Technical Errors and Serious Violations on Form I-9
Mistakes in completing an I-9 include simple typos, failure to fill out a section, or listing the wrong documents in the wrong spaces. Companies have ten business days to make corrections. Fines for record keeping violations range from $110 to $1,100 per violation. You can prevent fines by adequately training your managers and anyone who completes new hire paperwork, or by working with us to electronically file the forms, which can catch errors before filing.
More serious offenses, like knowingly hiring or continuing to employ ineligible workers, lying, or failing to supply documents, are subject to fines ranging from $375 to $16,000 for repeated incidents. In cases where an employer demonstrates a practice of knowingly employing an unauthorized worker, criminal prosecution can result.
New hires must provide employers with documents to verify their eligibility to work in the U.S., but the employer may not discriminate as to the documentation submitted. For example:
- If an employee offers an acceptable document, you cannot request one you are more familiar with.
- If someone provides a permanent residence card, you cannot say “we only hire citizens.” With the exception that in cases where the position, by law, requires U.S citizenship or with certain government contracts.
- If a new hire provides a work permit that expires in a year, you cannot tell them you would rather hire someone who has a longer work period.
These discriminatory hiring practices can lead to EEOC actions under Title 7 of the Civil Rights Act of 1964. You must honor any acceptable document that appears to be genuine. While employers are not required to be experts in document fraud, they are expected to raise a flag when presented with obvious examples of questionable materials. For example, a laminated Social Security card, or one that has white-out on it. Many states use the E-verify system which can spot a questionable Social Security card. In that case, the employer must allow time for the new hire to provide an alternative form of documentation, keeping in mind the three-day time limit.
I-9 Training and Audits
Let us help you ensure that your Form I-9s and supporting document files are in order. We offer training for those involved in the onboarding process to minimize technical errors, and periodic audits which can be valuable should you ever be the target of an ICE audit. Our process also includes electronic completion of the I-9 which, as mentioned, can significantly decrease technical errors. Please call us or send us an email if you need help in onboarding new hires.