All employers must complete a Form I-9 for each employee verifying that the employee is legally authorized to work in the United States.

A new version of the Form I-9 will be on its way by the end of the year, and it’s wise to remember that compliance with Form I-9 requirements is an essential business practice which cannot be taken lightly.

In fact, the fines associated with failure to comply with Form I-9 requirements increased recently. Moreover, federal agencies continue to scrutinize employers’ paperwork and go after employers who unlawfully discriminate against new hires during the Form I-9 employment eligibility verification process.

New Form I-9 On The Way

In November 2015, the U.S. Citizenship and Immigration Services (USCIS) announced proposed changes to the Form I-9, Employment Eligibility Verification. The revision process has been lengthy, but, in the next couple of months, we will see revisions to the form.

The Office of Management and Budget recently approved the final version of the new Form I-9, and the USCIS must publish a revised version by November 22, 2016.

In the meantime, employers must continue using the current version of the Form I-9, which bears an expiration date of March 31, 2016. The USCIS specifically stated that employers can use this version until January 21, 2017. After January 21, 2017, all previous versions of the Form I-9 will be invalid.

Penalties Increased

The penalties for Form I-9 violations increased recently, with some penalties nearly twice as high as before.

Previously, fines for failure to properly complete, retain and/or make the forms available for inspection ranged from $110 to $1,100 per violation. Now, these paperwork violations carry a fine ranging from $216 to $2,156 per violation.

Other fines also increased:

  • Knowingly hiring or continuing to employ workers who are not authorized to work in the United States carries civil penalties ranging from $589 to $21,563 per violation, depending on whether it’s a first or subsequent offense.
  • Engaging in unfair immigration-related employment practices carries a penalty of $445 to $17,816 per violation, depending on whether it’s a first or subsequent offense.
  • Document abuse (requiring employees to produce more or different documentation than the law requires) carries a minimum fine of $178 to $1,783 per violation.
  • Document fraud can carry penalties from $376 to $7,512 per document, depending on the type of fraud and whether it’s a first or subsequent offense.

Federal Crackdown

Federal agencies have been cracking down on employers who engage in I-9 immigration violations and discriminate against new hires during the Form I-9 employment eligibility verification process. Federal agencies also scrutinize employers’ paperwork during the Form I-9 process.

For example, in July, a northern California natural food company agreed to pay $1.5 million under a non-prosecution agreement reached with the United States Attorney’s Office, following a probe by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) into potential criminal hiring violations.

During a 2012 audit, HSI notified the company that 49 of its employees appeared not to be authorized to work in the United States. After one employee provided corrected documentation, the company informed ICE the other 48 resigned or were terminated.

Within less than one month, however, the firm rehired at least 13 of those employees under new names. One of them, an operations supervisor, never stopped working for the company. Instead, the individual continued to work under an assumed name, receiving payment as an independent contractor, rather than through the company’s regular payroll.

In August of this year, a San Diego staffing company settled allegations that its office discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

A Department of Justice (DOJ) investigation found that, for more than one year, the company engaged in a pattern of requesting specific immigration documents from non-U.S. citizens for the Form I-9 and E-Verify processes. In contrast, the company allowed U.S. citizens to present whichever valid documents they wanted to present to prove their work authorization.

Unlawful Immigration Practices

Under the INA, all workers, including non-U.S. citizens, must be allowed to choose whichever valid documentation they would like to present from the I-9 lists of acceptable documents, such as a driver’s license and an unrestricted Social Security card, to prove their work authorization.

It is unlawful for an employer to limit employees’ choices of documentation or require more or different documentation because of their citizenship or immigration status.

Under the settlement agreement’s terms, the staffing company will pay $175,000 in civil penalties, and the DOJ will monitor and review the company’s processes for verifying the work authorization of newly hired employees.

In both of these cases, the penalties will be a lot higher under the new increases.

Don’t forget that California-specific laws also provide several protections against immigration-related discrimination and retaliation and that these laws are another source of potential liability.

These recent developments highlight the need for employers to pay close attention to correctly completing the Form I-9. Employers also need to understand their obligations in terms of verifying documentation.

Best Practices

  • Ensure that you are using the correct version of Form I-9. For now, employers can continue to use Form I-9 with an expiration date of 3/31/16. Be on the lookout for the new version of Form I-9 coming this year. You will have until January 21, 2017 to comply.
  • Follow the Form I-9 instructions to ensure the forms are completed correctly.
  • Train employees responsible for completing Forms I-9 to ensure that forms are timely and accurately completed.
  • Treat employees equally when recruiting and hiring, and when verifying employment authorization and identity during the Form I-9
  • Allow each employee to choose the documents that he or she will present from the lists of acceptable Form I-9
  • Visit the HR Library for information on Completing the Form I-9.
  • Review government resources:

Consult legal counsel whenever you have concerns about how to handle an I-9 issue, especially in light of the increased enforcement in this area and the focus in California on immigration protections.