What Employers Need to Know About I-9’s

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Information about US immigration law - US Immigration and Customs Enforcement announced earlier this year that it has notified about 1,000 companies throughout the country that it will be auditing them to ensure they are not employing undocumented workers....

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What Employers Need to Know About I-9’s

  1. 1. What Employers Need to Know about I-9’s ICE penalties from worksite enforcement inspections increased to $5,300,000 in FY 2010, up from $1,033,291 in FY 2009, with average fines exceeding $110,000 ICE criminally charged a record-breaking 180 owners, employers, managers and/or supervisors in FY 2010, up from 135 in FY 2008 and 114 in FY 2009. ICE conducted more than 2,200 I-9 audits in FY 2010, up from more than 1,400 in FY 2009. ICE debarred 97 business and 49 individuals in FY 2010, up from 30 and 53, respectively, in FY 2009.US Immigration and Customs Enforcementannounced earlier this year that it has notified about1,000 companies throughout the country that it willbe auditing them to ensure they are not employingundocumented workers. The audits includeemployers in every industry across all 50 states.
  2. 2. Hiring an unauthorized worker can result in fines up to $5,500. Improperly filed I-9 forms that are missing information can lead to fines up to $1,100 (even if the employee in question is legally authorized to work in the United States). Knowingly committing or participating in document fraud can lead to fines up to $3,200 per document for the first offense and up to $6,500 per document for subsequent offenses.On July 22, 2010, the Department of HomelandSecurity (DHS) published a final rule amending theJune 2006 interim regulations relating to I-9 forms.The final rule clarifies that the employer has 3 daysfrom the first day of work for pay but not includingthe actual date of hire to complete Section 2 of theForm I-9; or, Thursday if the employee begins workon Monday. Most employers need not countweekends or federal holidays when determining itsForm I-9 completion deadlines. Retailers and othersimilarly situated employers may still be heldresponsible for weekends and holidays if those days
  3. 3. are ordinarily “days on which the employer conductsbusiness” pursuant to 1997 INS guidance.USCIS now requires additional information to berecorded such as the DS-2019 and I-20 numbers.Employers with F, J & M employees clearly haveadditional work to do and more training to provideto HR staff.For an H-1B employee’s Form I-94/I-94A issued foremployment with a previous employer, the employershould retain the following documents with theemployee’s existing Form I-9 to prove filing for anextension of stay on the employee’s behalf: A copy of the new Form I-129 Proof of payment for filing a new Form I-129; and Evidence that you mailed the new Form I-129 to USCISFurther, employers are not required to update FormI-9 when an employee changes his or her name, butthey may nevertheless do so in Section 3. Employersmay accept a document with a different name thanwhat was entered in Section 1 (e.g., due to married
  4. 4. name, compound name, or misspelling) as long asthe employer is satisfied that the document(s)reasonably appear to be genuine and relate to theemployee.When the employment is time limited, as in the caseof aliens authorized to work for a specific period oftime, the date of expiration must be noted and theI-9 revisited prior to that time so that it can beupdated and the individual’s status re-verified inSection 3. Failure to do so can be financially costlyto the employer who is audited by ICE and found tohave unauthorized individuals on payroll.The final rule clarifies the audit trail requirementssuch that an electronic Form I-9 system need notshow every time a Form I-9 is viewed or accessed,but it must track any: Creation, Completion, Alteration, Update, or Other modification
  5. 5. of a Form I-9 by recording: Date of access, Identity of the individual taking the action, and Particular action taken.If an electronic Form I-9 storage method is utilized,it must contain an indexing system that iscomparable to a reasonable hardcopy filing system.Lastly, DHS addressed the requirement thatelectronic Form I-9 systems be capable of printing atransaction record that must be given to theemployee at the time of Form I-9 completion. DHSdid modify the regulation in part, however, by onlyrequiring that a receipt be provided when anemployee requests it. The receipt only needs to beissued within a reasonable time, and it may betransmitted via e-mail rather than printed.
  6. 6. In SummaryIt is obviously a wise choice to pay meticulousattention to any new rules put forth by the DHS.Noncompliance can clearly result in a heavy financialburden—and no employer wants to face possiblecriminal prosecution. It is always in an employer’sbest interest to diligently follow the DHS rules for I-9compliance and to be fully informed about newupdates and amendments to existing regulations.Disclaimer: This article is not meant as specificadvice regarding a person’s individual case. Anattorney should be consulted. This article does notcreate an Attorney-Client relationship. Any taxinformation or written tax advice contained herein(including any attachments) is not intended to beand cannot be used by any taxpayer for the purposeof avoiding tax penalties that may be imposed onthe taxpayer. (The foregoing legend has beenaffixed pursuant to U.S. Treasury Regulationsgoverning tax practice.)

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