The Immigration Reform and Control Act of 1986 (IRCA) requires employers to complete and retain a Form I-9 for every employee hired after November 6, 1986. As an employer, it is imperative to ensure that you remain compliant with the IRCA. Non-compliance can result in significant fines, penalties, and potential jail time.
I-9 forms provide confirmation of each employee’s authorization to work in the United States. I-9 compliance is enforced by the U.S. Immigration and Customs Enforcement (ICE).
Responsibilities of Employer
To meet I-9 requirements, the employee must provide one document from Category A or one document from each of Category B and Category C (outlined below). They must review all documents to ensure that they are valid and meet I-9 rules.
Common issues with validity include:
- Expiration of Employment Authorization Documents
- Name mismatches
If an Employment Authorization Document provided has an expiration date, it should be recorded on the form for future reference. If the employee is still working for the company at the date of document expiration, an updated document must be presented to the employer. Expired documents are no longer acceptable for Form I-9.
ICE will occasionally select employers for an I-9 audit. If a company is selected, they must provide I-9 forms for each employed person. Missing I-9 forms can result in significant penalties. If the company is clearly hiring employees without confirming work authorization, company executives can even face jail time.
Fines and Penalties for Invalid I-9 Forms
There are a number of fines and penalties associated with I-9 non-compliance. These include:
- $876 per missing I-9 form for a single employee
- Between $548 and $20,000 for knowingly hiring unauthorized workers
- Potential jail time for employers who act with complete disregard to I-9 requirements
To prevent inadvertently going against the law, employers should regularly check their I-9 documentation to ensure it is compliant. If any forms are determined to be missing, they should be completed as soon as possible. A yearly self-audit of I-9 documentation can go a long way toward preventing any potential issues.
What Is Required for Form I-9?
The first section of a Form I-9 provides identifying information on each employee hired by your organization. This is followed by a second section in which the employer attests to reviewing the documents provided by the employee.
Section 1 of the I-9 Form
Section 1 is filled out by the employee. They will list their personal information, including the following:
- Full name and address
- Date of birth
- Maiden name (if the employee is providing documents showing that name)
- Social Security number
- Citizenship/immigration status
- Employee’s signature and date
All of the information provided is used to verify whether the employee is authorized to work in the United States.
Section 2 of the I-9 Form
Once Section 1 is complete, the employer will review the employee’s documentation of their identity and right to work within the United States. There are three categories of appropriate documents that the employee may present.
Category A Documents
Category A documents establish both identity and employment authorization. They may include any of the below:
- U.S. Passport or U.S. Passport Card
- Form I-551, Permanent Resident Card or Alien Registration Receipt Card
- Form I-766, Employment Authorization Document Card
- Foreign passport with Form I-94, containing an endorsement to work
While not an exhaustive list, these are the most common documents used for Category A.
Category B Documents
Category B documents are used to establish identity, but they do not contain a work authorization. They can include any of the below:
- Driver’s license
- School ID with a photograph
- Other forms of government-issued ID with a photograph and identification details
- Voter registration card
- U.S. Military ID card
- U.S. Coast Guard Merchant Mariner document/card
- Native American tribal document
- Canadian driver’s license
Individuals under age 18 may provide documents not included in this list, such as a school report card or medical records.
Category C Documents
Documents from Category C only provide evidence of work authorization but not identity. They can include any of the below:
- U.S. Social Security account number card
- Consular Report of Birth Abroad
- Certification of Birth issued by the U.S. Department of the State
- Original or certified copy of a birth certificate issued in the U.S.
This list is not comprehensive but includes the most common documents provided to meet the Category C requirements.
Recent ICE Updates to be Aware of
Due to the ongoing pandemic, ICE issued an exemption for companies that are working in a completely remote setting. The exemption allows employers to wait to inspect new hiring documentation until they return to a physical work setting. First extended in March 2020, this exemption will remain in force until April 30, 2022.
Focus HR Takes the Stress Out of I-9 Compliance
When you engage Focus HR as your outsourced HR partner, we will ensure you never have to stress about authorizing a new hire or worry about an I-9 audit. We check your paperwork, audit your I-9s and E-Verify every single month so you can focus on what you do best, running your business.