The Immigration Reform and Control Act of 1986 states that employers may only hire employees that are legally authorized to work in the United States and with that, employers must verify the identity and work authorization of anyone hired by completing the Employment Eligibility and Verification Form, known as the I-9. Even though this law has been around for almost 30 years, it is still something that employers (particularly small businesses) struggle in complying with and non-compliance can create a huge liability that carries pretty hefty fines and penalties. Here are six tips for small businesses to follow to avoid mistakes and stay on the side of compliance:
1. Have a complete Form I-9 on file for all employees hired after 1986. All employees on payroll, whether full-time, part-time or temporary, must have a completed I-9 on file. It is particularly important that the form be completed in full. It is the employer’s responsibility to check the employee section of the form to make sure that they have completed all items and that nothing is left incomplete before it is turned in. It is then also the employer’s responsibility to complete the employer section of the form in full and ensure that nothing is left incomplete, including all of the date fields written in the appropriate format. The company representative that verifies the identity of the employee is the person that needs to complete the employer section of the form and sign it. Each error found on the form during an audit starts at $110 and goes up from there. That means there can be more than one error per form, and that can add up quickly.
2. Stay within the three-day rule. The Form I-9 must be completed for all new hires within three business days from their first day of work, which can be challenging sometimes with a remote workforce or if employees forget to bring their forms of identification. It is important for the employer to have a process around enforcing the three-day rule and to stay within those guidelines.
3. Do not tell employees what to provide as their form(s) of identification. It is extremely important to not tell an employee what forms of identification to bring with them for the Form I-9. Many managers will say “show up on Monday and bring your drivers license and a copy of your social security card.” Don’t do that. Give the employee the list of acceptable documents that is included in the Form I-9, and let them determine what they will bring based on what is allowed on that list. It is the employer’s responsibility to verify that the employee has provided valid and acceptable forms of identification.
4. Re-verify. For employees with certain work authorizations, it is the employers responsibility to note the expiration date of the supporting documentation, track that information and then request new documentation from the employee prior to the expiration date. Section 3 of the Form I-9 needs to be completed in full with the re-certification information.
5. Create a policy/procedure for I-9 compliance. Have a written policy regarding the documentation for the I-9’s, filing and retention period so that it can be used a reference tool to ensure compliance from the beginning to reduce risk. Employers can, but are not required to, keep copies of the supporting documents provided by employees. However, if it is decided to be done, it must be done consistently. Either keep copies of all employee documents with their I-9, or don’t keep any copies of their documents with their I-9. The completed I-9’s must be filed separately from the employee files and the retention period for separated employees is one year from date of termination or three years from date of hire, whichever is greater. Once the policy is written, train hiring managers and anyone else that is involved in the I-9 process on the proper procedures.
6. Conduct a self-audit. It is a best practice for a company of any size to have an I-9 Audit completed and documented so that any errors can be corrected before they turn into hefty fines.
For more information on the Form I-9 or to download the most current version of the form, go to the U.S. Citizens and Immigration Services website at uscis.gov.