Updated September 2020
Employers have certain responsibilities under immigration law during the hiring process. Employers must verify the identity and employment authorization of each person hired after Nov. 6, 1986, by completing Form I-9, Employment Eligibility Verification. United States Citizenship and Immigration Services (USCIS) requires all employers in the United States to use the new version of Form I-9. The form can be completed by printing it and filling it out manually, filling it out electronically, and then printing and signing it, or using an electronic I-9 vendor. Employees must complete Section 1 no later than their first day of employment, and employers must verify their documents using the List of Acceptable Documents attached to the form. Section 2 of the form must be completed by the employer no later than the close of business on the third day after the date of hire (the first day of work for pay).
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These forms must be retained for three years after the hire date or one year after the date of termination whichever of the two dates is later. The retention section of the USCIS website provides a useful chart to assist in calculating the retention date. (https://www.uscis.gov/i-9-central/retain-store-form-i-9/retaining-form-i-9)
Employers who violate the law may be subject to civil fines, criminal penalties, debarment from government contracts, payment of back pay, and rehiring the individual. In 2016, the highest fine increased to 96% for I-9 paperwork violations. This only indicates how important it is to comply with federal immigration law. If you compare the fines in 2015 to 2020 the increase is 112%, from $110-$1,100 to $234 – $2,332 for each form violation occurring after November 2, 2015. Fine for companies who knowingly hire unauthorized workers also spiked from $573-$4,586 in 2019 to $583-$4,667 today.
HR and business leaders have mixed emotions when it comes to the smart Form I-9. Regardless, it helps improve compliance by guiding employees and employers throughout the process using features such as drop-down menus, hover text, and error notifications to reduce errors in the completion of the form. The latest version of Form I-9 can be downloaded from the USCIS website at www.uscis.gov/I-9. There is an option to download the fillable, interactive PDF version or a paper version.
Some of the smart features include alerts when required fields are blank or incorrectly completed, and notifications when the information provided by an employee is not consistent with employment-authorized status as indicated in Section 1. The form automatically marks fields that do not apply to the employee’s selected status with “Not Applicable.” There are drop-down menus in the List A, B, and C document fields of Section 2 to help employers know which documents to accept.
While the latest form may make the Form I-9 verification process easier, it’s important to remember that the employer representative must be in the physical presence of the new hire and review in person the documents being presented. Unless you and your team are working remotely as a result of COVID-19, you can make a virtual arrangement.
“Employers with entirely remote workforces as a result of the COVID-19 pandemic have until Nov. 19 to take advantage of relaxed document inspection requirements for the Form I-9 when onboarding new hires.”
Roy Maurer, Online Manager/Editor, Talent Acquisition
Any employee of the company can serve as the employer representative, but that person should be trained and fully understand the requirements of the I-9 process. This is especially important for remote hires. USCIS requires that the new employee be given a copy of the instructions. A link to the instructions is provided at the top of the smart Form I-9.
Employers should review their hiring and onboarding practices and establish appropriate employment verification practices to avoid errors that could result in costly penalties and fines.
https://www.uscis.gov/i-9-central provides a complete list of Civil Fines and Criminal Penalties for Form I-9 and Immigration-Related Employment Discrimination Violations and other I-9 resources.
