Overview
If they don’t already, U.S. employers must view Form I-9, Employment Eligibility Verification, as more than just a form. Changes to the form reflect changes in law, regulation, policy and technology. Employers must monitor Form I-9 developments and learn to read between the lines. After several years without changes, the United States Citizenship and Immigration Services (USCIS) has rolled out two new versions of Form I-9 since November 14, 2016, with the most recent version taking effect on September 18, 2017.
The recent releases of the Form I-9 coincide with an increase in a focus on employer enforcement activity and policies. The Form I-9 and the associated fines for violations and non-compliance were static since 2013. Thus, while many of the Form I-9 changes can be correctly characterized as technical and non-substantive, employers should not minimize the implications of frequent changes and governmental investments in technology enhancements.
With the introduction of a revised Form I-9 in November 2016, USCIS launched a “smart” and online fillable version billed as “user friendly.” USCIS views these enhancements as creating a readily accessible form, with an accompanying online guidance handbook, M-274. This, in turn, raises the compliance expectations for all U.S. employers.
The November 2016 Form I-9 changes were preceded by substantial increases in the range of fines related to Form I-9 violations. In August 2016, the fine for a first I-9 non-compliance violation increased from a range of $110 to $1,100, to a range of $216 to $2,156. The potential employer impact of such penalty increases is exponential, as violations are assessed per error or omission, not per Form I-9. A single Form I-9 can easily contain multiple violations, each of which can result in a fine.
Form I-9 violations fall under the purview of Immigration and Customs Enforcement (ICE). In addition to the prospect of multiple fines per Form I-9, discussed above, ICE can assess fines based upon the percentage of I-9s that have substantive or uncorrected technical errors. For example, ICE can assess enhanced penalties of $2,156 per Form I-9 if the company audit fail rate exceeds 50%. This potential penalty applies even if the violation rate is attributable to a single type of mistake, made uniformly on the majority of the employer’s forms. In determining penalty amounts within the allowed ranges, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.
Employers must be ready to produce their Form I-9s in response to an ICE Notice of Inspection within a three-day response timeline. Unprepared employers will find this three day production timeline to be very burdensome, disruptive and, potentially, costly.
The second and most recent of the two Form I-9 editions, dated July 17, 2017, is mandatory as of September 18, 2017. As of that date, all prior Form I-9 versions are invalid and cannot be used to confirm employment eligibility for new hires, re-hires, and Form I-9 re-verification. This does not invalidate Form I-9s on file for existing employees. The requirements as to when an employer must complete a Form I-9 have not changed. Similarly, this does not change the requirements for Form I-9 retention. Employers must continue to retain and store any previously completed Form I-9 for three years after the date of hire, or for one year after employment is terminated, whichever is later.
The July 17, 2017 Form I-9 edition contains few substantive changes. The instructions reflect the new name of former Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices—now the Immigrant and Employee Rights Section. Additionally, USCIS added the consular Report of Birth Abroad as a List C document on the Form I-9 list of acceptable documents. The USCIS also combined the certifications of report of birth issued by the Department of State as one item on List C and renumbered the list accordingly.
Employers must strike a careful balance and adhere to, but not exceed or overreach the Form I-9 requirements. These steps, often occur when employers fear enforcement, can result in other violations falling under unfair immigration related employment practices and discrimination. Employers must accept the documents on the form’s lists of acceptable documents, under the applicable instructions, if they are unexpired and reasonably appear to be genuine. Employers cannot refuse to accept a document due to a future expiration date, nor can they insist on presentation of a specific type of document or otherwise limit the document options set out in the approved lists.
Although the trend toward employer enforcement extends back to earlier administrations, the Trump administration brings a renewed and reinvigorated enforcement approach, including enforcement-related hiring and an increased budget for the Department of Homeland Security. Employers must prepare for Form I-9 audits and tougher compliance reviews by taking steps such as: conducting self-audits, properly calendaring employment authorization expiration dates for Form I-9 reverifications, systematizing Form I-9 retention and purging timing, and investing in on-going training and review of existing practices, procedures and technology options. Viewing the Form I-9 as far more than a simple, administrative, formality can avoid financial liability and related disruptions.
