Good record keeping is essential for any employer because at some point all businesses will need to produce documentation about an employee's work history, performance and/or employment dates. In fact, local, state and federal governments require that certain documentation be kept by employers.

A properly organized and complete employee record-keeping system can save an employer hours of lost staff time, stress and even money, since there are stiff penalties for failing to properly keep certain records.

An I-9 form is one of these critical documents that employers should be careful to file on each and every employee. The I-9 identifies the employee and documents his right to work in the United States.

The Employer's Responsibility

Employers are required to complete an I-9 form for every employee hired after November 6, 1986. The I-9 form is a tool used by the federal government to implement the Immigration Reform and Control Act of 1986. Employers must obtain a completed I-9 Form from all new employees upon hire. The form takes only minutes to fill out, but there are stiff consequences for employers who fail to file one on each employee. The employer must verify the information on the I-9 within 3 days. In most cases a Social Security Card and Driver's License are sufficient to meet verification requirements, but other forms of acceptable identification are listed on the I-9.

While it is the employer's responsibility to determine if the documents presented appear genuine, the employer must not use a more rigid standard of documentation with employees based on national origin or citizenship. If the documents appear genuine and are of the type permitted by law, the employer must accept them. Employers who ask for documentation not listed on the I-9 form may find themselves sued for discrimination.

The Employee's Responsibility

New hires must fill out and complete a Form I-9 Employment Eligibility Verification on the first day of employment. The Employee must present required documents that verify the information on the I-9 within three business days of commencement of employment.

Consequences of Failure to File I-9s

U.S. Immigration and Customs Enforcement (ICE) has always routinely conducted workplace audits of I-9s. Since, 2009, however, ICE has changed its focus from removing unauthorized employees to punishing employers who hire illegal workers. ICE has radically increased efforts to go after employers hiring undocumented workers. The consequences of failure to obtain I-9s for all employees can be costly to an employer. Even using an outdated I-9 form can cost an employer $1000 per document. Errors on I-9 forms also cost up to $1000 per document in fines.

Protecting Your Business

While it can be difficult to identify unauthorized workers, employers can protect themselves from problems in several ways:

1. Comply scrupulously with Form I-9 laws. Write clear policies for obtaining all required files including an I-9 during the new employee intake process. Create an new employee's checklist.

2. Have clear policies for storing and maintaining I-9 files so they are easy-to-access in the event of an ICE audit or raid.

3. Assign a single person to be in charge of all employee files including the I-9s. Write that responsibility into the job description for that position.

4. Create a human resource file checklist and establish procedures for doing regular reviews of all employee files including I-9s. Do a self-audit no less than annually; more often if your have a large staff turnover rate.

5. Keep records of all internal employee file audits and include evaluation of the audit process on the responsible employee’s regular performance review.

6. With each audit, make it a practice to download the latest version of Form I-9 from the US Citizenship and Immigration Service (USCIS) website.

7. At regular audits download the latest version of Form M274 - the Instructions for Completing the I-9: Handbook for Employers.

8. Register with USCIS E-Verify to electronically verify the employment eligibility of new hires. Use of E-Verify can virtually eliminate SSA mismatch letters, protect workers with proper authorization, improve the accuracy of wage and tax reporting and protect employers from charges of discrimination and from hiring illegal workers.

9. Create a plan in the event you receive a Social Security no-match letter from the Social Security Administration (SSA). While the letter is an SSA administrative mechanism, the letter is a head's up that you need to verify and correct the employee's SSA information. A no-match letter is not grounds for terminating an employee. It only means the employee-provided Social Security number does not match SSA records. Never terminate an employee based solely on a no-match letter. You could face charges of discrimination, if you do. Follow this procedure to address the issue:

  • Check your records to see if the problem is a clerical error.
  • If it's not, request that the employee review and correct the information on the I-9.
  • If you cannot resolve the discrepancy within 60 days, you must have the employee submit a new Form I-9.
  • If you still cannot verify the employee's identity and work authorization, you must terminate the employee. If you don't, the Department of Homeland Security can rule that you, as the employer, had “constructive knowledge” that you were employing an unauthorized worker and fine you.

What Auditors Look For

If you are audited, keep in mind the things auditors look out for:

1. First they want to see that you consistently follow your own policies and procedures with regard to new hires. Remember those new hire checklists?

2. They look for a consistent policy and practice in how you manage I-9 files.

3. They'll be looking for regular audits and clear procedures for filing I-9s and managing those files.

4. Finally, auditors will want to see a high level of accuracy and completeness. They want to know you pay attention to details required on the forms.

Photo courtesy of bridget_willard via Flickr