Common I-9 and E-Verify Mistakes Employers Make

Posted on Friday, April 12, 2019

Immigration and related labor laws seem to be frequently in the news. For employers who fail to comply with federal laws concerning immigrants and employment eligibility, the penalties can be severe. In fact, failure to comply may well put an employer out of business.

"If an employee cannot complete Section 1 without assistance or if he or she needs Form 1-9 translated, someone may assist him or her. The preparer or translator must read the form to the employee, assist him or her in completing Section 1 and have the employee sign or mark the form in the appropriate place. The preparer or translator must then complete the Preparer and/or Translator Certification Block on Form 1-9"

-- USCIS Handbook for Employers, Guidance for Completing Form 1-9

That means maintaining your compliance effort with Department of Labor laws, particularly with regard to I-9 forms and E-Verify, is a critical function for human resources employees and managers alike. But studies indicate the typical employer's portfolio of I-9 forms is riddled with errors. Researchers have found that 50 percent or more of I-9 forms filed have at least one error on them - potentially exposing the employer to significant penalties and even putting their business licenses at risk.

Meanwhile, federal agents are stepping up enforcement efforts. Industry experts are reporting that Immigrations and Customs Enforcement and Department of Labor auditors have stepped up their inspection rates by as much as 600 percent, including both targeted audits and random inspections of I-9 employee eligibility data.

In order to protect your business, you must take your employer responsibilities seriously. That means taking a hard look at your I-9 and E-Verify compliance program and ensuring it is ship-shape.

With that in mind, here are some of the most common (and preventable) mistakes employers are making today:

Late completion. The deadline for employers to complete a Form I-9 is within three days after the employee begins work. The worker, however, must complete Section 1 of Form I-9 prior to beginning work.
Using outdated forms. Government agencies occasionally change their forms to account for new information-gathering requirements, instructions, privacy rules, etc. Outdated I-9 forms are not valid. Employers must use the latest versions of all official forms to ensure they are within compliance. Resist the urge to pre-print stacks of forms for later use. To ensure you are using the newest, most up-to-date edition, click here to download the I-9 Employment Eligibility Verification form from the USCIS website.
Failure to Verify Signatures. Make sure the worker signs the form. If the form is not signed by the worker, it is null and void. You will receive no credit for having an unsigned form on file.
Failure to Inspect for Proper Completion. It's not enough just to check for a signed form. Employers must ensure that the employee properly fills out the entire form. All employees must check a status box identifying themselves as U.S. citizen, legal resident, or otherwise as someone who is eligible to work in the United States. Those who are aliens must enter an alien number.
Ignoring the Problem. If you wait until the Immigration and Customs Enforcement agents show up with an enforcement warrant, it's probably too late to avoid serious penalties. But many employers choose to stick their heads in the sand while the problem compounds. Take the initiative to tackle the documentation issues you may already have before law enforcement shows up at your door.
Practicing Unlawful Discrimination. Federal law prohibits employers from placing workers they believe to be foreign under stricter scrutiny than workers they believe to be American. In practice, this means that you cannot require more documentation from a foreign-born worker than from an American. If you reasonably believe the proffered identification is valid, and you would accept the documentation from a worker you believed to be an American, you must accept the documentation from a foreigner.
Retaining Records Too Long. Federal law limits how long you may keep your employee's I-9 forms on record. As long as the individual remains in your employ, you must retain I-9 forms. Once employment has ended, you should destroy forms three years from the date of hire or one year from the time the worker leaves, whichever is later.
E-Verify Laxity. Employers should take care to understand the operational control of the E-Verify chain, and how the requirements of the E-Verify system differ from the requirements of the I-9 form.
Failure to conform to state laws. Your state has labor laws of its own, over and above the federal requirements. Indeed, the number of relevant laws your state has on the books is frequently even greater than the federal government's laws. Your human resources effort should include a parallel compliance program that ensures your hiring is compliant with state laws as well as federal laws.
Denial. This is the most dangerous problem of all, since it prevents employers from dealing with this vital potential source of liability and legal risk. Other times, employers simply don't take the law seriously, and minimize the importance of their employee obligation.

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