Ten Tips for Small Business I-9 Compliance
By: Tony Weigel, Weigel Law Office, LLC November 30, 2006
Since November 7, 1986, all employers in the U.S. have been required to verify that each newly-hired employee is eligible for employment in the U.S. by the completion and retention of I-9, Employee Eligibility Verification forms. In the last year, Immigration and Customs Enforcement ("ICE"), the agency charged with enforcing immigration laws, has arrested 716 individuals on criminal charges and 3,667 individuals on administrative charges in worksite enforcement investigations. The current focus of ICE is to be aggressive and to seek criminal prosecutions wherever possible. ICE's enforcement efforts are focused on industries traditionally associated with employment of unauthorized workers, including construction, food processing, restaurant, and agricultural production. ICE has targeted businesses of all sizes, to include small businesses. As an aid to most small businesses, the following is a list of ten tips for complying with the government’s I-9 requirements: 1. Require every new employee to complete the top portion (Section 1) of the I-9 form on the first day – no exceptions! If the person refuses to do so, he or she should not be permitted to resume working until this is completed. Please note, the employee should not complete any other part of the form. 2. In most all cases, the new employee must provide documents which show his or her employment eligibility by the end of third day of work. If the person fails to do so, he or she should not return to work until such documents are provided. 3. The employee should be permitted to provide any acceptable document or acceptable combinations of documents listed on the form for compliance with I-9 rules. Requesting specific documents can be considered discriminatory “document abuse.” Likewise, an employer must treat all employees in a consistent manner and not discriminate on the basis of citizenship status or national origin in employment eligibility matters. 4. If the employer decides to make copies of the documents presented, it should make two-sided copies and should make copies of documents for all new hires going forward. 5. If an employee is not a U.S. citizen or permanent resident, the employer must note when that person’s employment eligibility expires and calendar to re-verify employment eligibility about two to four weeks prior to that date. This can be done in Outlook or by some other simple method. 6. All I-9 forms should be kept separate from all other personnel or payroll records. One can simply 3-hole punch these completed forms and place them in a binder. 7. Designate one person to handle these functions with at least one trained back-up. There are serious consequences for failing to comply with the law, so it is well worth the trouble. Even if an employer only employs authorized workers, it can still be liable for significant fines for maintaining inadequate paperwork.
8. As a business grows, it should make efforts to train its hiring managers on I-9 requirements and periodically review these requirements with its hiring managers. These initial and subsequent efforts should be documented. 9. Develop a plan for responding to government inquiries, including in-person visits by government agents, and designate a specific person with authority to respond. a. Any written inquiries should be reviewed as soon as possible because a government agent may expect to review I-9 files within 3 days or less. b. In the event of an in-person visit, if possible, ask the agent to sit and wait until he or she can speak with the designated person. Also, if the agent has no search warrant or subpoena, an employer should think twice about giving consent for the agent to inspect the premises. Immigration agents may make unannounced “educational” visits and attempt to obtain such consent. Additionally, if an employer receives an “educational” visit, it may be subject to further, less friendly inquiries in the future. 10. An employer should not ignore letters from the Social Security Administration stating a particular employee’s Social Security Number does not match its records. These are often referred to as “no match” letters. The receipt of such letter does not indicate an employee is not authorized to work, but an employer should follow up on these matters after consulting with appropriate counsel. Given the potential for significant fines, criminal charges, and even asset seizure, an employer should not hesitate to contact an attorney knowledgeable in I-9 compliance issues if it has any concerns about compliance. More specifically, an employer may benefit from taking actions such as conducting “self-audits” of I-9 files, participating in any of the government’s optional resources, such as the Basic Pilot Program, or destroying old I-9 forms when permitted to do so by law, but such actions are not risk-free. Similarly, if an employer is the subject of a government inquiry, it should contact an attorney immediately. The time frames for responding to government inquiries can be very short and ICE’s aggressive actions may seem intimidating. Remember, this is America and everyone has rights, even employers.
The information is provided as general information only, not as legal advice for any specific situation. If you have any questions about this article or how it affects your situation, please contact Anthony Weigel at (816) 847-1663 or by e-mail at: tony@weigellawoffice.com. Weigel Law Office, LLC is a Kansas City-area law office that specializes in employment-related immigration matters and in issues relating to employer compliance with U.S. immigration laws. Please see www.weigellawoffice.com for additional information.