The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to hire or continue to employ any person it knows is not authorized to work in the United States. This law applies to all employers, regardless of the number of employees. Under IRCA an employer has three basic obligations:
- See that the new employee completes Section 1 of Form I-9;
- Complete the employer’s section ( Section 2) of Form I-9;
- Physically examine the documentation presented by the employee that establishes their identity and eligibility for employment.
There are both civil and criminal consequences for violating IRCA. Moreover, a person who engages in a pattern of regular, repeated, and intentional violations of IRCA may be fined up to $3,000 for each unauthorized worker hired, or imprisoned for up to six months. Sometimes both of these penalties are imposed. A fine between $275 to $2,200 can be assessed against a first-time offender. Upon a second offense, the penalties range anywhere from $2,200 to $5,500. For a third-time offender, the fines range anywhere from $3,300 to $11,000. The employer may also be subject to a cease and desist order to stop hiring unauthorized workers. However, before any fines can be imposed by the government, there must be a finding that the employer knowingly hired an undocumented worker.
In cases of repeat offenders, the United States Attorney General can sue employers in federal court. In such instances, the Attorney General can prosecute for harboring, smuggling, concealing, and transportation of illegal aliens for financial gain those who repeatedly disregard the requirements of IRCA. Criminal convictions under these provisions can result in individual liability with a sentence of up to ten years in prison and/or $250,000 in fines per undocumented worker. In some instances, both penalties are assessed.
Under IRCA, the employer’s obligations to prevent the hiring and continued employment of unauthorized workers are clear. The commitment to compliance should be displayed in every office where applicants apply for positions. Further, the employer should require all consultants, independent contractors, vendors, and suppliers to certify their compliance with immigration laws.
Upon first inspection, Form I-9, the form used by the government to verify an employee’s eligibility to work in the United States, seems to be a relatively simple government form. However, looks can be deceiving. In fact, this single page form has so many governmental rules and regulations attached to it, it requires the use of a separate 69 page handbook in order to use the form properly. This book is known as the M-274 Handbook for Employers.
As a result of these numerous rules and regulations, there are many mistakes that can be made by employers when filling out and maintaining Form I-9 records. Moreover, an employer who fails to complete or maintain I-9 documentation according to the handbook can run afoul of United States Immigration and Customs Enforcement (ICE), and may incur civil and criminal liability, including severe financial penalties.
Three Day Rule
ICE rules stipulate that I-9 forms must be completed within three business days of the employee’s first day of work. This means that the employee must complete section one of the form, provide identification documents, and have those documents verified by the employer, all within three business days. Sometimes a new employee will forget to bring documentation within three days of hire. However, if an employer fails to meet the three-day deadline, it could result in hefty fines, so do not allow employees to begin working until the I-9 Form is complete.
It is important to note, however, that IRCA regulations do not require the employer to verify the authenticity of the documents. They only have to examine them to ensure that they reasonably appear to be genuine. Accordingly, under IRCA, an employer who makes a good faith effort to comply with these document verification requirements has a good faith defense that they have not violated the law.
In fact, under IRCA, an employer can even hire an employee prior to checking their employment eligability documents. However, the law does mandate that within three business days of the hire, the employer is required to physically examine the employee’s documentation to verify that the documents appear to be bona-fide and that they belong to the employee.
Penalties for Failure to Complete Form I-9
Failure to properly complete the I-9 Form can result in a fine of $110 to $1,100, per form. Additionally, ICE fines for late completion of Form I-9 range between $300 to $400 per form. A first violation of the knowing employment prohibition can result in a penalty of $275 to $2,200. For a second violation, penalties range between $2,200 to $5,500. Third violation penalties range from $3,300 to $11,000, and the employer is also at risk for criminal pattern or practice liability. The criteria considered in determining the size of the fine include: the size of the business, the good faith of the employer, the seriousness of the violation, whether the individual was an unauthorized alien, and the employer’s history of previous violations.
If an employer fails to obtain the right combination of identifying documents from lists A or lists B and C, then the I-9 documentation will be considered incomplete and the employer becomes subject to fines. If an employer obtains identification that is expired, that can also put them out of compliance.
Social Security Mismatch Letters
When names and social security numbers of employees do not match, the Social Security Administration (SSA) sends a letter to an employer—this is called a “mismatch letter.” ICE will take action against employers who ignore the SSA mismatch letter due to the fact that workers who show up on the SSA mismatch letter repeatedly are presumed to be in the country without work authorization.
Employers should give employees whose names show up on the mismatch letter written notice that they need to try to resolve their problem at the local SSA office. Let employees know that you might have to take further action if they appear on the mismatch list again. Employers should also consider using the free SSA online verification system to reduce the number of people on the SSA mismatch letter in the future.
I-9 Compliance Tips
- Confirm that staff performing verification is properly trained. Original (not photocopies) of documents, except for a certified birth certificate, should be examined.
- Make photocopies of documents. Keep I-9 Forms in a separate file, not in personnel folders. By separating the I-9 files from other employment files, ICE will not be able to look at other documents which could raise other issues for audit.
- Common I-9 documentation mistakes include incorrect dates, missing signatures, transposed information, and incomplete check boxes.
- An employer asking for too many identifying documents from list A or lists B and C could expose the employer to discrimination allegations. An employee has the right to use any documents listed on the I-9 form to prove their work eligibility. An employer cannot mandate which forms of identification the employee must use.
- Make sure to keep track of the expiration date on an employee’s work permit or other document establishing their right to work in the U.S. It is the employer’s responsibility to monitor that date and request new documentation from the employee prior to its expiration.
Conduct periodic self-audits to confirm that the company has I-9 Forms for all current employees. If you are missing forms, obtain them as soon as possible. If you are missing forms for terminated employees, consider contacting them to obtain a form. Be sure to review the I-9 Form during an exit interview or before an employee is terminated.
During self-audits, examine I-9 Forms to ensure they are properly completed. Check that there is an actual street address, not just a P.O. Box number. If you have photocopies of documents employees presented, you can use them to obtain the missing information. If necessary, contact the employee to obtain the missing information. If the employee neglected to sign or date Section 1, ask the employee to do so. Use correct dates to the extent possible. If you add or revise information in Section 1 of the form, complete the Preparer/Translator certification. Also, consider adding “self-audit” next to any form corrections.
Purge I-9 Forms during self-audits. Follow the retention rule: three years from date of hire and one year from date of termination. When you meet both tests, throw out the form. It’s important to note that 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.
For assistance with I-9 compliance or other labor and employment or immigration law matters, contact the attorneys at Bustos Law Firm, P.C. at (806) 780-3976.