In today’s increasingly complex regulatory environment, businesses face mounting pressure to comply with federal immigration laws, particularly the Immigration Reform and Control Act (IRCA) of 1986.
This law requires U.S. employers to verify the work eligibility of every new hire by completing Form I-9. Employers must follow strict guidelines to ensure compliance and avoid severe legal and financial consequences. While Form I-9 completion is mandatory for every hire, E-Verify, an optional tool, can help further strengthen compliance efforts.
Understanding Form I-9 Compliance
Form I-9 is a fundamental requirement for all employees hired to work in the U.S., regardless of citizenship or immigration status. This form serves as a means to verify both the identity and work authorization of employees, thereby preventing the employment of unauthorized workers. Employers must ensure the form is completed properly: Section 1 must be filled out by the employee no later than their first day of employment, and Section 2 must be completed by the employer within three business days of hiring.
E-Verify: An Additional Compliance Tool
E-Verify is an online system that allows employers to cross-check the information provided on the I-9 form against government databases, such as the Department of Homeland Security (DHS) and the Social Security Administration (SSA). Although E-Verify is not mandatory for most employers, it serves as a valuable tool to confirm the employment eligibility of new hires.
E-Verify provides one of three results:
Employment Authorized: The employee is eligible to work in the U.S.
Tentative Nonconfirmation (TNC): A discrepancy requires resolution.
Final Nonconfirmation (FNC): The employee is not authorized to work.
While E-Verify is compulsory for federal contractors and certain other employers, it remains voluntary for many businesses. However, using it can offer additional security and peace of mind regarding compliance.
The Risks of I-9 Non-Compliance
Failure to comply with I-9 regulations can lead to substantial penalties, including hefty fines, criminal charges, and the possible revocation of a business license. Fines for non-compliance can range from $281 to $27,894 per violation, depending on the nature of the infraction. Employers who knowingly hire unauthorized workers can face even steeper penalties, ranging from $573 to $22,927 per unauthorized employee. Beyond these financial consequences, businesses risk reputational damage and increased scrutiny from regulatory bodies, which can disrupt operations and long-term success.
The Importance of Regular I-9 Audits
To mitigate the risk of non-compliance, employers should conduct regular I-9 audits. These audits help identify errors or discrepancies that could result in violations. Here is a step-by-step guide to conducting an effective I-9 audit:
Gather All I-9 Forms and Documentation: Collect and organize all I-9 forms for both current and former employees, ensuring each form is supported by valid identification and work authorization documents.
Review I-9 Forms for Completeness: Verify that all sections of the I-9 form are filled out correctly. Section 1 must be completed by the employee before or on their first day of employment, while Section 2 must be filled out by the employer within three business days.
Verify Document Authenticity: Ensure the employee’s identification and work authorization documents are valid, unexpired, and listed on the I-9’s List of Acceptable Documents.
Ensure Proper Retention: Employers must retain I-9 forms for three years after an employee’s hire date or one year after their termination, whichever is later. These forms should be stored securely and be easily accessible for inspection.
Correct Errors: If discrepancies are found, employers must correct the forms using the most recent version of the I-9. Any changes should be initialed, dated, and accompanied by a written explanation. The original document should not be altered.
Document the Audit: Maintain detailed records of the audit process, including any corrections made, to demonstrate proactive efforts to stay compliant.
Best Practices for Ongoing Compliance
To ensure continuous I-9 compliance, employers should implement these best practices:
Regular Training for HR Staff: HR personnel should undergo ongoing training on I-9 completion, document verification, and E-Verify usage. Staying updated on changes in immigration law is essential to ensure compliance.
Leverage Technology: Automated tools and software can help streamline the I-9 process, reduce human error, and simplify document storage. Some systems even integrate with E-Verify, making the verification process more efficient.
Standardize Verification Procedures: Establish clear, consistent procedures for verifying new hires’ work eligibility. This includes using E-Verify when appropriate and setting protocols for handling discrepancies.
Conduct Routine I-9 Audits: Regular I-9 audits—ideally every six months—help identify issues early and prevent compliance lapses.
Consult Legal Counsel: In the event of an audit or investigation by Immigration and Customs Enforcement (ICE), employers should consult an immigration law expert to ensure proper handling of sensitive employee data.
Preparing for ICE Audits and Worksite Inspections
Given the heightened focus on immigration compliance, businesses must be prepared for the possibility of an ICE audit or worksite inspection. In the event of a Notice of Inspection (NOI) from ICE, businesses should take the following steps:
Ensure that all I-9 forms are accurate, complete, and compliant with federal regulations.
Retain copies of all documentation submitted during the inspection.
Limit access to sensitive employee information and consult legal counsel before releasing any documents to ICE agents.
Conclusion
Maintaining I-9 compliance is not just a legal obligation, but a vital practice to protect your business from penalties and ensure lawful hiring practices. By conducting regular audits, utilizing E-Verify, investing in technology, and following best practices, employers can mitigate risks and avoid costly violations.
For businesses looking for expert guidance in managing I-9 compliance, partnering with a professional services provider like Thrive PEO can help streamline the process. With the right tools and knowledge, employers can stay compliant while focusing on growing their business.
Questions on I-9 compliance? Contact Thrive PEO today at: (918) 794-2200.
Oklahoma-based Thrive PEO is the state’s fastest growing Professional Employer Organization (PEO); and provides a customized suite of human resource solutions designed to help SMBs: lower employee benefit costs, increase productivity and profitability, and reduce employer liabilities and business risks. Services cover the entire employee lifecycle, and include: payroll and tax administration, employee benefits and related administration, HR and compliance, workers’ compensation insurance, retirement plans and more – all delivered by a Tulsa-based team via market-leading HRIS technology.