By Lee Allphin, Employer Advantage Founder and Chairman of the Board
If you’ve started a new job in the last 30 years, chances are you have filled out a Form I-9. Officially known as the Employment Eligibility Verification form, it is used to verify the identity and eligibility of all employees hired to work in the United States. All US employers have been required to use the form since the passage of The Immigration Reform and Control Act of 1986 (IRCA).
Every employee hired after November 6, 1986 is required to complete the Form I-9 within 3 days of employment. The responsibility of being I-9 compliant falls on the employer, which includes not only ensuring that the I-9 is completed properly by the employee, but also by the employer, and then stored securely. I-9 Compliance may also include tracking and re-verifying the I-9 when certain identification documents expire, retaining copies of IDs, using the current version of the form, having completed I-9s available for government agency audits, and complying with E-Verify rules if the employer participates in E-Verify.
Compliance with the IRCA has always been important, but it is especially relevant today.
Within the last few years, the Department of Homeland Security (DHS) has stepped up audits of Form I-9 to “promote homeland security and public safety through the criminal and civil enforcement of federal laws.” With these audits, the agency wants to encourage companies to hire employees with proper identity and work authorization and to decrease or eliminate the number of companies misusing employees without proper work documentation. If DHS comes in for an audit and discovers that an employer’s I-9 documentation is not in order, that employer can face a substantial fine. Penalties for substantive violations, which includes failing to have an I-9 on file for an employee, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, a good faith effort to comply, the seriousness of the violation, whether the violation involved unauthorized workers, and the history of previous violations.
How does Employer Advantage help clients with I-9 Compliance?
Employer Advantage carefully reviews I-9s when an employer sends in new hire paperwork. If any errors are identified, our staff works with the employer to ensure the forms are corrected and compliant. Our HR services department also tracks I-9s that involve documentation that must be periodically re-verified so that clients know when that re-verification needs to happen.
Employer Advantage is also an Agent for E-Verify and can submit I-9 information for the E-Verify process. Some employers are required to participate in E-Verify due to their status as a federal or state contractor or subcontractor. Other employers choose to participate in E-Verify as an affirmative defense that they have completed the I-9 correctly and have verified the authorization of the employee to work in the United States.
As a part of our services, we commit to helping employers be compliant. Our staff receives up-to-date training on Form I-9, the I-9 process, and E-Verify so that we can assist employers in completing the forms correctly and within the appropriate timeframes. The average employer has a hard time keeping up with the ever-changing laws and forms that they must deal with for their business.
Employer Advantage prides itself on swiftly and professionally handling clients I-9 compliance needs.
There are two types of errors on the I-9: Technical and Substantive
Examples of technical failures can include (but are not limited to):
• Use of the Spanish version of the I-9, except in Puerto Rico;
• Failure to ensure an individual provides her maiden name, address, or birth date in Section 1;
• Failure to ensure a Lawful Permanent Resident or alien authorized to work provides his alien number (“A” Number) in Section 1 of the I-9, but only if the “A” Number is provided in Sections 2 or 3 of the I-9 (or on a legible copy of a document retained with the I-9 and presented at the I-9 inspection);
• Failure to ensure the individual dates Section 1 at the time employment begins;
• Failure to ensure a preparer and/or translator provide his or her name, address, signature, or date;
• Failure to provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or proper List B and List C documents in Section 2 or 3, but only if a legible copy of the document(s) is retained with the I-9 and presented at the I-9 inspection;
• Failure to provide the title, business name and address in Section 2;
• Failure to state “Individual underage 18” in Column B, for employees under the age of 18 using only a List C document; and
• Failure to provide the date of rehire in Section 3.
Typically, DHS will give the employer 10 business days to correct technical failures. If the failures can be corrected within the designated timeframe, the employer is deemed to have complied and no violation exists.
Examples of Substantive Failures include (but are not limited to):
• Failure to timely prepare or present the I-9;
• Failure to ensure that the individual provides his or her printed name in Section 1 of the I-9;
• Failure to ensure the individual checks a box in Section 1 of the I-9 attesting to whether he is a citizen or national of the United States, a lawful permanent resident (LPR), or an alien authorized to work until a specified date, or checking multiple boxes;
• Failure to ensure an LPR or alien authorized to work provides his or her “A” Number in Section 1 of the I-9, but only if the “A” Number is not provided in Sections 2 or 3 of the I-9 (or on a legible copy of a document retained with the I-9 and presented at the I-9 inspection);
• Failure to ensure the individual signs the attestation in Section 1;
• Failure to complete Section 2 within 3 business days of hire;
• Failure to review and verify a proper List A document or proper List B or List C documents in Section 2 or Section 3;
• Failure to provide the document title, identification number(s) and/or expiration date(s) of a proper List A or proper List B and List C documents in Section 2 or 3, unless a legible copy of the document(s) is retained with the I-9 and presented at the I-9 inspection;
• Failure to provide the date employment begins in Section 2 of the I-9;
• Failure to sign the attestation in Section 2 of the I-9;
• Failure on the part of the employer of authorized representative to print his/her name in the attestation portion of Section 2;
• Failure to date Section 2 of the I-9;
• Failure to date Section 2 within three business days of the date the individual begins employment or, if the individual is employed for three business days or less, at the time employment begins.
• Failure to recertify and complete within 90 days the pertinent Section 2 information for verification with a receipt for lost or stolen documents.
• Failure to sign Section 3 of the I-9;
• Failure to date Section 3 of the I-9; and
• Failure to date Section 3 of the I-9 not later than the date of the expiration of the work authorization.
Substantive failures do not have a 10-day notification and correction period and are subject to fines.
Need help with I-9 compliance or any other employee administration or compliance matters? We would be honored to provide you with the freedom to succeed:
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About Employer Advantage
A New Path to HR Bliss – Trusted for more than 25 years, Employer Advantage frees you from the administrative and compliance burdens of having employees so you can focus on what you do best: helping your business succeed. From energetic entrepreneurs to large corporations, we create a tailored and strategic approach to fit your individual needs and company culture. Our suite of services includes payroll, employment taxes, health and benefits, retirement, human resources, employee manuals, safety, workers’ compensation, OSHA, DOT, and more…More than just a slick software solution, our dedicated service teams save you time and money while providing your employees with top-notch assistance and benefits. We enhance your profitability while reducing the costs associated with employment laws and the often-significant penalties for the failure to comply with them.