As we wait for the new I-9 form to be released (anticipated in November of 2017), it is a good time to revisit the complexity of this required new hire document. The I-9 form and the requirement for completion of this form seem simple enough. While the current form, to include instructions and document requirements is 9 pages long, ultimately only two pages are required to be completed and retained by the employer. After all, isn’t the form just about assurance that the person you’ve hired isn’t an undocumented worker?
I-9 enforcement activity is directed by the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations. Workforce enforcement usually begins with a Form I-9 Inspection. The process is initiated by serving the employer with a “Notice of Inspection,” which requires the employer to produce their I-9 forms and additional supporting document within three business days of the notice.
It is important to understand that while ICE’s primary objective of these inspections is to determine if the employer has knowingly hired or continued to employ undocumented workers, the inspection also determines if the I-9 was completed accurately and timely as stated in the regulations and free of paperwork errors. These administrative errors are classified as technical or substantive. Technical errors may include failing to capture all the document information in sections 1, 2, or 3 of the form. Upon discovery of this category of errors, the employer is given ten days to make corrections. Substantive errors occur when an employer fails to timely prepare an I-9 form. This could mean that an I-9 was never completed for the employee or it wasn’t completed within three business days of the employee’s commencement of work.
In a recent ruling from the Department of Justice, a small business with no prior history of I-9 violations, was penalized $25,525 for substantive errors. The company, Anodizing Industries, Inc. of Los Angeles was found to have hired individuals who were authorized to work in the United States, however, the Company failed to prepare I-9 forms within the three day limit for 26 employees.
The cost of noncompliance can be significant. Civil penalties for substantive and uncorrected technical violations can run between $110-1,100. Additionally, ICE uses a scale referred to as an “Enhancement Matrix,” that allows for penalties to be increased or decreased as a result of mitigating factors that include business size, good faith, seriousness and cumulative adjustment. These are in addition to penalties for knowingly hiring and continuing to employee unauthorized workers. It is crucial to note that individuals can face criminal charges for patterns or practices of knowingly hiring or continuing to employ unauthorized aliens – clearly a position no organization or individual would want to be in.
In part 2 of this series, I will outline the key information on completing and retaining I-9 forms. RSM’s team of Human Resources consultants can assist in reviews of I-9 forms, strategies for correction and training team members on proper technique and timing for completing forms. To learn more about how RSM can assist you with your other business needs, contact RSM’s management consulting professionals at 800.274.3978 or email us.