Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Employers are required to complete and retain an I-9, Employment Eligibility Verification for each employee who is hired for employment, with limited exceptions which will be discussed below.

IRCA specifically prohibits Employers from knowingly employing individuals who are not authorized to work in the U.S. Failure to complete and maintain an I-9 and verify the employee’s documents can have serious repercussions for the Employer, including penalties under Federal Law.

Therefore, it is vital that Employers understand their responsibilities when onboarding employees and ensure that the proper paperwork is completed on time. Due to the COVID-19 Pandemic US Citizenship and Immigration Services (USCIS) has relaxed some of the requirements with respect to the completion of I-9s, specifically the physical presence requirements. This will be discussed in more detail below.

What is Form I-9?

Form I-9 is a USCIS form and is required under Federal law. The most up to date form I-9 can be accessed here.

On the form the employee is attesting to the fact that they are authorized to work in the U.S. The Employer must examine the employee’s work authorization documents to ensure that they are genuine and is required to record this information on the Form I-9.

An employer may use a computer to complete the I-9 or a paper form or a combination of both.

What is included in Form I-9?

Form I-9 consists of three sections:

Section One: Employee Information and Attestation;
Section Two: Employer or Authorized Representative Review and Verification
Section Three: Reverification and Rehires (completed by employers for rehires or where the current work authorization expires).

When does the I-9 have to be completed?

The following chart outlines the steps which the Employer and Employee must take. Please note that an Employer may not ask an Employee to complete an I-9 before he/she has accepted the job offer.

Who can complete the I-9 on behalf of the Employer?

Employers may designate an authorized representative to act on their behalf to complete Section 2 and 3. An authorized representative can be any person you designate to complete the form on your behalf. However, please note that the Employer is liable for any violations in connection with the form and verification process so its vital that the person you designate understands their responsibility.

As stated above the Employer or authorized representative must complete the Form I-9 within 3 business days of the employee’s first day of employment. This means if an employee starts on a Monday the Employer must review and verify the employee’s documents and complete Section 2 of the form by Thursday.

List of acceptable documents

Form I-9 contains a list of acceptable documents in order to verify an individual’s identity and ability to work in the U.S. There are 3 lists of documents, List A, List B and List C.

Employees may provide one document from list A or a combination of one selection from List B and one from List C. To view those lists please click here.

Reviewing and verifying documents during COVID-19

Employers must obtain, inspect and retain employment authorization documents presented by the employees in-person.

However, on March 20, 2020, the US Department of Homeland Security (DHS) announced that it would defer the physical presence requirements associated with the Form I-9 due to Covid-19. This guidance originally valid for a specific period, was renewed on August 19, 2020 for a further 30 days.

Under this guidance, employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Employers must still obtain, inspect and retain copies of the documents remotely (via video link, fax, email, etc.), within three business days of the date the work starts. The employer must enter “Remote inspection completed on XX/XX/XXXX” in the Additional Information field in Section 2.

Once normal operations resume, within three business days, employers will enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field. Once the documents have been physically inspected, the employer will add “documents physically examined” with the date of inspection to the Section 2, additional information field on the Form I-9, or to section 3 as appropriate.

Please note that the guidance only applies to Employers and workplaces that are operating remotely. To avail themselves of this provision, employers must provide written documentation of their remote onboarding and telework policy for each employee.

The guidance does not apply if there are employees at the work location. If newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

Common mistakes when completing I-9

The following are some of the common mistakes made by Employers or their authorized representatives when completing Form I-9:

Failing to have the employee complete Section 1 by their first day at work;
Ensuring that the employee has completed the form correctly and sign it;
Failing to complete Section 2 by the third business day;
Failing to review and verify the documents in person;
Having untrained personnel complete Form I-9;
Not completing an internal audit of their Form I-9s;
Accepting fraudulent documents; and
Failing to re-verify documents after the expiration of a work authorization.

Penalties for not completing and maintaining accurate I-9 records.

The US Immigration and Customs Enforcement (ICE) is the agency implementing the penalties provisions within DHS.

The penalties are generally imposed based on two types of violations:

knowingly hire or continue to employ an individual not authorized to work in the U.S.—consequently not maintaining any record of I-9;
substantive and uncorrected technical violations—typically happened with improper I-9 records.

ICE initiates the administrative inspection process by serving a Notice of Inspection (NOI). ICE may issue a Warning Notice or a Notice of Intent to Fine (NIF) if they find a violation.

An Employer may receive a monetary fine for all substantive and uncorrected technical violations.

Employers determined to have knowingly hired or continued to employ unauthorized workers under INA § 274A(a)(1)(a) or (a)(2) will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted.

Additionally, an Employer found to have knowingly hired or continued to employ unauthorized workers may be prevented from participating in future federal contracts and from receiving other government benefits (debarment).

Monetary penalties for knowingly hiring and continuing to employ range from $583 to $23,331 per violation, with repeat offenders receiving penalties at the higher end.

Penalties for substantive violations, which includes failing to produce a Form I-9, range from $234 to $2,332 per violation. These penalties were recently increased to account for inflation and represent the latest penalties which could apply in the event of a violation.

ICE considers five factors that can either mitigate or aggravate the monetary penalties: (1) the size of the business, (2) good faith effort to comply, (3) seriousness of violation, (4) whether the violation involved unauthorized workers, and (5) history of previous violations.

How long does an Employer need to retain Form I-9 for?

Retention of Forms I-9 is required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.

Processing of Form I-9

There is no need to file Form I-9 with USCIS or ICE. Employers must:

Have a completed Form I-9 on file for each person on their payroll who is required to complete the form;
Retain and store Forms I-9 for three years after the date of hire, or for one year after employment is terminated, whichever is later; and
Make their forms available for inspection if requested by authorized U.S. government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.

Final thoughts

Employers need to ensure they have a completed I-9 for each and every employee. Furthermore, Employers need to ensure they are keeping track of when an employee’s work authorization expires and completing Section 3 as appropriate.

Employer’s cannot specify which documents an employee must present and must examine the documents presented by the Employee to ensure they are genuine and relate to the person who is presenting them.

Employers who discover that they do not have a completed I-9 for an employee should complete one as soon as possible and should not backdate this.

Failure to comply with the requirements may subject employers to monetary fines, criminal prosecution and debarment by ICE.

If you have any questions or would like the Attorneys to complete an internal audit of your I-9 forms please contact our Partner, Chris Prescott at cprescott@patellegal.com or our Attorney, Monique Mutombo at mmutombo@patellegal.com