Employers have long been required to verify each new employee’s identity and eligibility to work in the United States through the completion of the Employment Eligibility Verification form ("I-9"). Proper completion of the I-9 is required for all employees, regardless of citizenship. Despite its being in effect for more than 25 years, compliance with this law still eludes many employers.
The Basics: The I-9 has two sections. In the first section (completed on the first day of employment) the employee attests to his or her identity and legal status in the United States. In the second section (completed within the first three days of employment), the employer verifies the employee’s identity and work eligibility by reviewing and recording documents specified on the I-9 form as acceptable for this purpose. Different documents may be used for each purpose and are categorized by the government as those that verify both identity and work authorization (List A documents), those that verify only identity (List B documents), and those that verify only work authorization (List C documents). To complete the second section, employers must either examine and record documents from List A, or inspect one document each from List B and List C. The employee may choose which document(s) to present from the lists.
A Recent Case: A North Carolina employer was recently assessed penalties of $9,500 for recording only List B documents for 19 of its 22 employees, which only verified the identity of each employee, but not the employee’s eligibility to work in the United States. Each of the employees in question was a U.S. citizen, so that no unlawful employment had occurred – however, it was not "no harm, no foul," and penalties were assessed.
Penalties for substantive violations may range from $110 to $1,100 per employee. The possible maximum penalty faced by the employer in this case was $20,090. The court considered factors such as employer size, good faith, past violations, and ability to pay in determining the penalty to be assessed. Although $9,500 may not seem a large amount to some, the employer’s errors that caused this liability were easily avoidable, making this an unnecessarily expensive lesson by any analysis.
What to Do: To avoid liability, employers should educate themselves about I-9 completion requirements and conduct regular audits of completed I-9 forms to ensure compliance. Employers should also be aware that the I-9 form and the list of acceptable documents change periodically and that employers are responsible for using the current form and reviewing the necessary and acceptable documents listed on the current form for each required verification. Updated forms may be found at www.USCIS.gov.
For review of your policies and procedures regarding employment verification or to arrange an I-9 audit, please contact Melissa Jones.