I-9, Employment Eligibility Verification Changes: Updated Fact Sheet

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As we do every year, we like to inform our readers of recent changes to the U.S. Citizenship and Immigration Services (USCIS) Form I-9, Employment Eligibility Verification.  Form I-9, a familiar document to employers’ human resources offices, verifies the identity and employment authorization of their newly hired employees.

This year, the update involves changes to the Form I-9 Inspection Under Immigration and Nationality Act § 274A fact sheet.  Employers should take care to familiarize themselves with the list of potential substantive violations and technical or procedural failures that could give rise to penalties.

The I-9 Inspection Process

The administrative inspection process begins with the service of a Notice of Inspection (NOI) upon an employer. Employers have at least three business days to produce the Form(s) I-9 requested in the NOI with the possibility of other supporting documentation.

When an employer responds to a NOI by producing Form(s) I-9, HSI agents and/or auditors conduct an inspection of the Form(s) I-9 for compliance. If Homeland Security Investigations (HSI) finds technical or procedural failures, the employer receives at least 10 business days to make corrections.

An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures.

Notice of Findings During Inspection Process

During the inspection process, HSI may provide one of the following notices: (1) Notice of Suspect Documents; (2) Notice of Discrepancies; or (3) Notice of Technical or Procedural Failures.

Notice of Findings Upon Completion of Investigation

Upon completion of the investigation, HIS provides either a Compliance Letter, a Warning Notice, or a Notice of Intent to Fine. Employers found to have knowingly hired or continued to employ unauthorized aliens must immediately cease the unlawful activity, with no exceptions or reprieve. Failure to do so may result in civil fines and/or criminal prosecution.

Form I-9 Substantive Paperwork Violations

Examples of general substantive violations of Form I-9 requirements include:

1. Failure to prepare Form I-9.
2. Failure to present Form I-9 for inspection upon request.
3. Failure to ensure the timely preparation of Section 1, Section 2 and/or Supplement B of the Form I-9.
4. Completion of a Spanish-language version of the Form I-9 outside of its authorized area, namely Puerto Rico.
5. Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) for the employee, and electronic signature(s) for the employer, recruiter, or referrer for a fee, or representative.

Specific substantive violations of Section 1, Section 2, Supplement A and Supplement B are also enumerated in the fact sheet.

Form I-9 Technical or Procedural Failures and Potential Violations if Uncorrected

Section 1 Technical Failures

1. Failure to use a version of Form I-9 that is current at the time any part of the form is initially completed.
2. Failure to ensure that an individual provides his or her other last names used (if any) or a physical address in Section 1 of Form I-9. A missing email address or phone number in Section 1 will not constitute a violation.
3. Failure to, when enrolled and utilizing E-Verify for the employee, ensure that the employee’s Social Security Number is correct.

Section 2 Technical Failures

1. Failure to record the employee’s complete name at the top of page 2.
2. Failure to provide the business name, or physical business address in Section 2 of Form I-9.

Supplement A Technical Failures

1. Failure to record the employee’s full name at the top of Supplement A.

Supplement B Technical Failures

1. Failure to record the employee’s full name at the top of Supplement B.
2. Failure to record the employee’s new name (if applicable) in the applicable section.

The fact sheet also lays out civil penalty fine amounts and the methodology for their calculation.

This is a good reminder for employers to use care when their new hires are filling out their employment paperwork, particularly the I-9 Form. Employers should ensure that their human resources representatives have all of the information and practical guidance they need for new employees to successfully navigate the documentation presented to them.  Now is a good time to contact Rosasco Law Group for all of your employment needs.