New I-9 Form Released and I-9 Audits Dramatically Increase

The U.S. Citizenship and Immigration Services (USCIS) released a new Employment Eligibility Verification Form I-9 on March 8, 2013.  Employers have a 60 day grace period where they may continue using the previously valid I-9 Forms.  After May 7, 2013, it is mandatory that employers use the new Form I-9. Please click here to view the new Form I-9. Here are some of the changes to the I-9:

§  Form I-9 is now two pages

§  Expanded instructions

§  New fields for e-mail address, phone number and foreign passport in Section 1

I-9 AUDITS DRAMATICALLY INCREASE

There were a record number of audits and enforcement actions by U.S. Immigration and Customs Enforcement (ICE) for non-compliant Form I-9 programs in 2012.  ICE conducted more than 3,000 audits in 2012, compared to just 250 in 2007.

FINES FOR FORM I-9 ERRORS

As a result of increased auditing efforts by ICE, fines on employers with non-compliant Form I-9 programs grew from $1 million in 2009 to $13 million in 2012. Fines for I-9 errors begin at $110 per error and climb to tens of thousands of dollars per error for repeat and grave offenses. If an employer has one form per employee and multiple mistakes on each form, the financial penalties could quickly escalate into six and seven figures.

Abercrombie & Fitch paid more than $1 million after an audit uncovered numerous deficiencies in the company’s process for completing and retaining its I-9 records for employees in its Michigan stores.

COMMON I-9 DOCUMENTATION & RETENTION MISTAKES

1.     Incorrect Completion of Forms

Common I-9 documentation mistakes include incorrect dates, missing signatures, transposed information and incomplete check boxes.

2.     Out of Compliance with the Three-Day Rule

ICE rules stipulate that I-9 forms must be completed within three (3) business days of the employee’s first day of work.

 3.     Improper Document Maintenance

ICE rules require employers to maintain I-9 forms either one year after the date of termination, or three years after the date of hire, whichever date is later. If an employer fails to destroy I-9 forms within the outlined time frame, then that employer will be subject to fines. Furthermore, if an employer is audited and has not destroyed outdated I-9 documentation, any errors found on those outdated forms will also be subject to fines.

4.     Failure to Re-verify

Employers will need to track and update the employee’s supporting I-9 documentation. For example, at the time of hire, a work-authorized alien will provide documentation showing their eligibility to work in the United States. This supporting documentation includes an expiration date and it is the employer’s responsibility to monitor that date and request new documentation prior to expiration.

INSIGHTS FOR EMPLOYERS

§  Use E-Verify, an Internet-based, free program run by the United States government that compares information from an employee’s Form I-9 to data from U.S. government records.

§  Establish an internal compliance and training program related to the hiring and employment verification process, including completion of Form I-9.

§  Require that the Form I-9 and E-Verify process be conducted only by individuals who have received appropriate training.

§  Arrange for annual Form I-9 audits by an external firm or a trained employee not otherwise involved in the Form I-9 process.