As ICE audits continue to rise, accurately completing, updating and maintaining I9 forms properly, basically, I9 compliance, has become a focal point for businesses, especially in the hospitality and building industries.
History of I9
Through the Immigration Reform and Control Act of 1986, Congress made employers liable for hiring or continuing to employ workers who are not authorized to work in the United States and created civil and criminal penalties for doing so. The theory behind this approach is that illegal immigrants will not come to the US if they cannot work, and the federal government drafted employers to execute the policy. The law thus requires businesses to verify identity and check work status, and the tool is the Employee Eligibility Verification form (I-9) which must be completed and retained for each employee.
After 20 foreign terrorists who had entered the country legally committed the 9/11 attacks, Congress dismantled the Immigration and Naturalization Service and reshuffled the enforcement deck, placing all immigration issues under the purview of the nascent Department of Homeland Security (DHS). The agency’s purpose was to coordinate the nation’s strategy for preventing and responding to future terrorist attacks, and DHS separated immigration duties into three newly created departments.
- US Customs and Border Protection would control America’s borders and facilitate international trade and travel.
- US Citizenship and Immigration Services (USCIS) would focus exclusively on processing immigration applications.
- Immigration and Customs Enforcement (ICE) would oversee and enforce the country’s immigration laws.
This is how we reached the modern regulatory course of action that administers the mandates of the Immigration Reform and Control Act. USCIS sets up and manages the system through I-9s while ICE acts as the muscle, ensuring that the government’s will is carried out.
In 2018 the number of worksite investigations quadrupled and the agency has gathered additional resources promising to continue to expand its heightened scrutiny of this avenue of immigration control. With such a bright light shining on employers, it’s more crucial than ever that businesses obey both the spirit and letter of the law or risk punishment for running afoul of it. Lookout has developed a comprehensive I9 compliance software that addresses and proactively combats fines arising out of ICE Audits.
Basics of Completing I9 Forms
The form I-9 is a legal document around which a burgeoning area of case law has formed. It does not represent a guideline or busywork or an empty set of regulatory data that will sit idly in a drawer for the prospect of some future demographic study. The information detailed in the form subjects both employers and employees to prosecution, and it requires supporting documents that contain varied expiration dates that must be tracked. Even honest mistakes made in good faith can generate civil penalties for both parties. Employers who have defied the government have paid millions in fines and other judgments, and some continue to sit in jail for non-compliance.
The I-9 is divided into three sections, each of which contains its own legal obligations.
Section One: Employee Information and Attestation—This section of the I-9 must be completed by a new employee no later than his or her first day of employment. Here, the employee attests to his identity and work status and must sign himself, even if the form was filled out by a helper. His signature is the legal mechanism that attaches the information he provides to the penalty of perjury which carries the same weight as giving false testimony in a court of law. The employer’s responsibility for this section is to ensure that the employee filled each field properly.
Section Two: Employer or Authorized Representative Review and Verification—The employer must complete this section within three business days of the employee’s first day of work. Here, the employee presents the relevant combination of allowable documents, and the company’s representative physically examines the presented documents. After entering the appropriate data, the representative signs, thereby swearing under penalty of perjury that the presented documents reasonably appear to be genuine and that he believes the new employee is authorized to work in the US.
Section Three: Reverification and Rehires—An employer must complete this section when:
- The employee’s work authorization or documentation of authorization, when applicable, has expired;
- The employee is rehired within three years of the date of the I-9 or
- When the employee’s name is legally changed.
Note that this section also subjects the employer’s representative to perjury charges through his signature.
The USCIS and ICE websites provide multiple resources to help employers and employees understand the I-9 and to thoroughly describe and explain each field on the form.