Employment eligibility verification and immigration law: As an employer, have you ever done the following?
(1) Stapled a copy of a new hire’s identification documents but didn’t actually fill out the Form I-9;
(2) Didn’t complete a Form I-9 within three business days of hire; or
(3) Didn’t retain I-9 forms for former employees more than a year.
If any of these common oversights sound familiar, then you may want to take note of the penalties against an employer that were recently upheld in federal court. In 2013, Immigration and Customs Enforcement (ICE) fined the employer almost $800 per violation for some fairly common I-9 mistakes found during an agency audit, including:
Failing to complete I-9 forms within three business days of hire for 54 employees;
Failing to actually fill out Section 2 of the Form I-9 for those 54 employees, where the I-9 forms were stapled to copies of the employees’ identification and work authorization documents instead; and
Failing to retain the I-9 forms for 84 former employees for at least 3 years after hire or 1 year after termination, whichever time period is longer.
The employer appealed the fines to the Second Circuit Court of Appeals and lost. The court ruled that all of the violations above are “substantive” violations subject to higher fines than if they were merely “technical” or “procedural” violations. (Buffalo Transportation, Inc. v. U.S.A., 2nd Cir, Dec. 2016.)
Tips: The penalties for Form I-9 violations have significantly increased since the fines were assessed on the employer in this case. Most Form I-9 violations can be prevented by training appropriate staff on how to properly complete the Form I-9 and requiring all new employees to complete the form with a trained staff member on the first day of work. Contact your Vigilant employment attorney to discuss best practices with regard to employment eligibility verification. For an overview of I-9 requirements, see our Legal Guide, “At a Glance: Form I-9.” Reminder: a new Form I-9 is now available and became mandatory on January 22, 2017.