I-9 Forms matter now, more than ever

May 14, 2008

It’s election season, and immigration is on the short list of any candidate who wants to be taken seriously on a national basis.

The proposed programs may vary, but all of them have one thing in common: penalizing the employers who hire undocumented workers. That’s something that shows up even on a state level, with a recent law in Arizona promising that the state will take a dim view of employers who continue to employ undocumented workers. The current administration is not taking a back seat in this debate. It too is looking at employers.

At the end of February, the Justice Department announced that it was increasing civil fines against employers who violate federal immigration laws, with a new regulation to be published in the Federal Register and effective in March.

Existing law provides that employers who violate the employment eligibility requirements of federal immigrations laws can be fined. Those violations may include knowingly employing unauthorized aliens; failure to comply with the requirements relating to employment eligibility verification forms; wrongful discrimination against job applicants or employees on the basis of nationality or citizenship; and immigration-related document fraud. Under the new rules, civil penalties will increase about 25 percent. The minimum penalty for knowingly employing an unauthorized alien will now be $375. That’s a deceptive figure standing alone – the penalties are assessed on a per-person basis, these are minimums and there are other sanctions.

Why all that attention on employers? In most cases, the laws, regulations and proposals look at employers as the magnet for illegal immigration. Cut off the jobs, and you limit how attractive it can be to enter and stay illegally in the country. In fact, when the new regulations were announced, Immigration and Customs Enforcement also announced that it had brought in more than $30 million in 2007 in combined fines, restitution and civil judgments from worksite enforcement operations. The federal government believes there are about 12 million illegal aliens in the United States presently, and about 65 percent of them are in the workforce.

With employers under the microscope, now is a good time to make sure that your hiring practices conform to federal law. All U.S. employers must verify the eligibility and identify of all employees hired to work in the United States after Nov. 6, 1986, by completing Employment Eligibility Verification forms (the I-9) for all employees including US citizens.

Employers who hire, or continue to employ, unauthorized workers are at risk for civil and criminal penalties.

The federal government has made the verification process as simple as it can. The I-9 form is available on line at www.uscis.gov.

Make sure you fill it out within three business days of the date employment begins (or on the day employment starts, if work is for less than three days). Let the employee choose which forms to provide. Don’t make any suggestions, other than providing the approved list of documents. Make sure you record the documents you reviewed, and sign the form. You don’t need to make copies. Keep the completed forms available for inspection. They don’t need to be filed with any government agency. They should not be kept with personnel files. Keep them separate. Retain them for a year after employment ends, or three years after the date of hire – whichever period is longer.

Questions? U.S. Citizenship and Immigration Sevices has a nifty manual for employers (the M-274) that should answer most employer questions. See www.uscis.gov.

Federal contractors will have a new responsibility in the near future. Homeland Security is looking into requiring all federal contractors to use E-Verify, which is an internet-based system operated by the DHS in partnership with the Social Security Administration. It allows employers to verify employment eligibility electronically, once employees have been hired. The system is free. For the time being it’s voluntary. That is likely to change in the near future for a large subset of employers.

Paula Barran practices law in Portland, Ore.

Written by Paula A. Barran  |  Filed Under Immigration 

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