As any business owner would know, big and small, there is always paperwork that needs to be done. Completing forms can be a tedious task and with a demanding business to run, keeping on-top of it even more arduous. However, with the Dept. of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) announcing their intention to increase worksite enforcement of U.S. immigration laws, the I-9 form is one piece of paperwork you definitely need to have in order.
Nationwide, ICE worksite enforcement jumped more than threefold in the first nine months of FY 2018. In their 2020 budget, Homeland Security has called for an additional $313.9 million for the hiring of an additional 1,000 officers and more than 600 supporting personnel. With that in mind, now more than ever, businesses in the food service industry need to focus on correctly managing their I-9 forms – managing being a significant keyword. There is a misconception that I-9 forms solely focus on routing out those who employ illegal workers – while that is technically what the form is all about, an employer can have a 100% legal-to-employ workforce but can incur big fines for paperwork violations!
What are we talking about? A single Dayton area restaurant was fined more than $20,000 for failing to comply with Form I-9 verification requirements and in Michigan, Abercrombie and Fitch paid more than $1 million in fines for paperwork errors, with no allegation of unauthorized employment. Current fines for paperwork violations range from $224 minimum to $2,236 maximum per violation. Even typos or mistakenly entering the wrong date of birth may be found to be a paper violation. Likewise, fines for violations when an employer knowingly hired ineligible workers range from $559 to $4,473 per violation.
Basically, even though it is only a two-page form, there’s a lot more to the I-9 than filling it in, filling it away and thinking that you’ve completely your legal duty. Without rock-solid HR policies and well-trained staff handling I-9 employment verification, it can cost employers time, money, and a lot of unnecessary headaches. So, what are some of the most common Form I-9 errors that you need to know about?
- Too Late: Law requires that the form is completed within a set timeframe –THREE days to be exact! Employees must complete, sign, and date Section 1 of the I-9 form no later than their first day of work, but can’t be asked to fill it out before they’ve accepted a job offer. Employers must complete Section 2 of the form within three business days of the employee’s first day of work.
- Form Errors: Incomplete or missing employee personal, failing to provide an acceptable address, missing employee signatures or failing to date the form are all common mistakes.
- Wrong Documents and Over Documentation: While it may seem like the employer is being diligent by requesting as many documents as possible to verify that an employee is legally eligible to work in the U.S., the employer cannot ask for anything more than what the form requires. Make sure you check that the documents the employee presents are on the USCIS lists of acceptable documents.
- Accepting Scans or Copies of Documents: While an employee can send a scan of whichever documents they choose from the list attached to the I-9 form, the employer must review the original documents of the employee (not a photo, scan etc.) first to verify identity and employment eligibility.
- The Spanish Version: The Spanish-language version of the I-9 can only be used by employers and employees in Puerto Rico. The employer can provide the Spanish-language version to Spanish-speaking employees to refer to for guidance when filling in the form, but it cannot be the version actually completed and placed in the employee’s file.
- Storing and maintaining: While completion of the form can be tricky, storing and maintaining the Forms I-9 is equally important. The Department of Homeland Security mandates that employers must have a completed Form I-9 on file for all employees (US or otherwise) hired after November 6, 1986, as well as keep Form I-9 for terminated employees for three years after the hire date or one year after the termination date, whichever date is later. With the American Restaurant Association reporting that 2018 restaurant employee turnover ticked past 70% in 2018, that’s a lot of paper to keep track of.
With the Form I-9 it can seem like there is lot of paperwork and details to worry about but if you establish a rigorous system for managing your forms to ensure you are compliant you’ll have a lot less to worry about. Such as;
- Creating a uniform, written, I-9 compliance policy and train your staff on it. This is especially important when paper forms are still being used. An estimated 60-80% of paper Form I-9s were missing, incomplete or contained errors within organizations across the country, according to an industry expert with the law firm Jackson Lewis, PC.
- Establish a best practice method for proper cataloguing and retention of I-9s, such as separating former and active employees’ I-9s.
- Put in place a calendaring system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
- Similarly, schedule regular reviews of your files and even conduct a self-audit of your Form I-9 for your employee base to help find and correct known issues – some would even go so far as to say you should consider having an attorney or other trained professional review your I-9 Forms to identify potential violations that could result in penalties from ICE in the future.
Basically, when it comes to the Form I-9, now more than ever, when you hire new employees, take time and be conscientious about the I-9 form process—your business will be better off in the long run.
FYI: The current I-9 form can be found on the official USCIS website – all three pages of the form, the supplement (if you need it), as well as the 15 pages of instructions. You also have the option to use a tool called E-Verify which allows you to verify an employee’s work eligibility online. E-Verify electronically matches information provided by your employee on their I-9 form against records from the Social Security Administration and the DHS. Using this tool is free and completely voluntary, so it’s good to know that you have the option to use it.