UPDATED 8/19/20 8:58 am PT:
Earlier this year, the White House announced a $4.8 billion budget for the next fiscal year, including $49.8 billion in funding for the Department of Home Security (DHS) initiatives. These initiatives include immigration enforcement, which is why your Form I-9 practices and procedures need to be in tip-top shape.
Upon reading this, you may have noticed that your I-9 forms are expired. While there is no need to panic, you do need to take immediate action, ensuring that you remain compliant. Last year, the DHS and the U.S. Citizenship & Immigration Services (USCIS) agency announced that Form I-9, with an expiration date of August 31, 2019, could be used past this date. However, a new I-9 form has since been uploaded with an expiration date of October 31, 2022.
What Is an I-9 Form?
Form I-9 (Employment Eligibility Verification) is used to verify the identity and employment authorization of those hired to work in the United States. Issued by the DHS, this form must be completed by all U.S. employers, completing an I-9 form for each worker they hire, whether they’re citizens or not.
The first portion of the form is filled out by the employee. It must be completed and signed no later than the first day of employment, but not before accepting a job offer. Section 2 is filled out by the employer or an employer’s authorized representative. This portion must be completed and signed within three business days of the employee’s first day.
Along with Form I-9, employees must present one document from List A, which includes options such as a U.S. passport, a permanent resident card, or a foreign passport that contains a temporary I-551 stamp. As an alternative option, employees must present one option from both List B and List C. For example, a driver’s license AND a social security account number card; or a school ID with a photograph AND a certified copy of a birth certificate. All document(s) presented must be unexpired. Here is a full list of the accepted documents.
Please note: These records need to be maintained for a period of three years from the date of hire or for one year after the employee is no longer employed, whichever is longer. The DHS can (and does) audit employers to ensure compliance. That is why it’s important to rectify any concerns surrounding Form I-9 expiration. HR for Health offers a secure, cloud based storage so you can safely maintain employee records such as these.
Be Mindful of the Following Form I-9 Violations
On November 6, 1986, the enactment of the Immigration Reform and Control Act required employers to verify the identity and employment eligibility of their employees. Criminal and civil sanctions were created for employment-related violations.
All employers are required by law to maintain original I-9 forms for all current employees, as well as for former employees based on the timelines discussed above.
The inspection process is as follows:
- As an employer, you will receive a notice of inspection (NOI)
- Upon inspection, you may receive a notice of suspect documents or notice of discrepancies
- If not, possible violations are inspected next
- If there are no violations, you are compliant
- If there are violations, these can be either (1) substantive violations (which may result in a warning, fine, settlement, or OCAHO hearing) — or (2) technical violations (which typically results in compliance)
Some of the violations you need to be aware of include:
- Employing someone who is not authorized to work in the United States. This is illegal and will likely result in civil penalties or even criminal charges. If you knowingly hire and continue to employ an individual based on this violation, you could face penalties that range from $573 to $20,130 per violation. Repeat offenders can expect penalties at the higher end.
- Not complying with the I-9 verification process. For example, you may have received a Final Nonconfirmation during the E-Verify process. This does not automatically mean that an employee is not eligible to work in the U.S. It simply means that E-Verify was unable to verify the employee’s authorization. You are required to take action. Report to the Final Nonconfirmation in order to remain compliant.
- Falsifying a document. This not only constitutes a violation, but it is also fraud.
- Discriminating against an individual who is employment-authorized.
- Inaccurately filling out I-9 forms. This is the most common violation and although it can often be easily rectified, you will likely face a civil penalty. If you fail to produce a Form I-9, penalties range from $230 to $2,292 per violation.
The U.S. Immigration and Customs Enforcement take five main factors into consideration following a violation — the size of the business, the seriousness of violation, good-faith effort to comply, whether the violation involved unauthorized workers, and history of previous violations.
Addressing Form I-9 Expiration
As an employer, it is your responsibility to remain compliant. This means you need to be mindful of form I-9 expiration. As stated by the DHS, although several versions have been released in the past, not all versions are valid for use. To determine whether you’re using the correct version, employers are instructed to look at the revision date printed on the bottom left corner of your form — not the I-9 expiration date printed on the top.
The latest Form I-9 was revised on 10/21/2019. Currently, this is the only valid Form I-9. This was put into effect on May 1st, 2020. A revised Spanish edition of Form I-9, with an edition date of 10/21/2019, is available for use in Puerto Rico only. For more information on revision dates please visit the official website of the DHS.
The Latest Changes to Form I-9
The latest form was released on January 31, 2020, which was approved by the Office of Management and Budget on October 21, 2019. The new Form I-9 includes some minor changes, both in terms of the form and the form’s instructions.
For example, when completing section 2, the proposed revision states:
“You may designate an authorized representative to act on your behalf to complete Section 2. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf.”
You may view the “Table of Changes” as published by the DHS here. Changes are written in red.
Concerned About Form I-9 Expiration? In Need of HR Support?
Are you concerned about your business in regard to Form I-9 expiration? Now is the time to take proactive action to ensure all of your paperwork is audit-ready. At HR for Health, we can help!
If you are a current HR for Health client and have additional questions, please reach out to our team by calling 877-779-4747. Please keep in mind that due to an influx in questions related to the COVID-19 outbreak, our response time may be slower than usual, but we will get back to you as soon as we can!
If you are not a current HR for Health client and have additional questions, please schedule an HR consultation with us by booking time here or calling us at 877-779-4747, option 1.
Learn more about I-9 and other required forms with the experts at HR for Health. Contact us by phone at 877-779-4747 or by emailing email@example.com today.
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Quick note: This is not to be taken as legal or HR advice. Since employment laws change over time and can vary by location and industry, consult a lawyer or HR expert for specific guidance. Learn about HR for Health's HR services