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Demystifying Form I-9: Answers to 10 Frequently Asked Questions from a Former ICE Worksite Enforcement Attorney

Writer's picture: Noha Immigration LawNoha Immigration Law

Updated: Jan 21


I-9 form

If you are an employer, thinking about the possibility of an I-9 audit under the new Administration, you are not alone. When an incoming president speaks in terms of "mass deportations," this usually means an increase in immigration worksite enforcement (including a combination of I-9 audits as well as operations at worksite locations). As a former ICE worksite enforcement attorney in the agency's San Francisco and Honolulu Field Offices, I received many questions from employers who were subjects of I-9 audits. Here are 10 of them:


1.            What is an I-9? The Form I-9 (“I-9”) is a U.S. Department of Homeland Security (“DHS”) form that all Employers and Employees in the United States must complete. Employees must complete Section 1 of the form on the first day of employment. Employers must complete Section 2 within three (3) business days of the date of hire. If any Employees have temporary work authorization, Employers are required to reverify the Employee’s work authorization when the temporary authorization is near expiration.

 

2.            Why does DHS make people complete I-9s? The federal law that created the I-9 was passed in 1986. The objective of this law and the I-9 is twofold – to require Employers to (i) verify the identity of their Employees; and (ii) verify the employment eligibility of their Employees (meaning, to make sure their Employees are all authorized to work in the United States).

 

3.            Why should I care about I-9 compliance? Employers who do not complete I-9s at all, or who complete and/or maintain them incorrectly, can be fined by the federal government. The DHS Office of Homeland Security Investigations (“HSI”), which is a part of U.S. Immigration and Customs Enforcement ("ICE"), has the authority to inspect an Employer’s I-9s. This is sometimes referred to as an “I-9 audit.” If HSI identifies mistakes relating to when an I-9 was completed, how it was completed, and/or how the I-9 is stored and/or maintained, the agency can fine the Employer for these violations. The fines can be substantial. Egregious I-9 violations can lead to criminal charges and "debarment."

 

4.            How are fines calculated? Following an I-9 inspection, an HSI auditor will determine how many I-9s the Employer should have completed. The auditor will then calculate the number of I-9s with substantive violations. The HSI auditor then determines the percentage of I-9s with substantive violations, compared to the total number of I-9s the Employer is responsible for. With this percentage, the auditor will use a predetermined fine schedule to determine the base fine for each I-9 with a substantive violation. The schedule of base fines is periodically updated to account for inflation. At the time of this writing, a base fine for a single I-9 with a substantive violation can be as high as $2,861. HSI can adjust the base fine (up or down) based on a variety of factors.


5.            Are there any other penalties for I-9 violations? Yes. In more egregious types of cases (typically, those where an Employer knew Employees were not authorized to work), HSI can pursue criminal charges against an Employer and debarment proceedings that could prohibit the Employer and its owners from receiving government contracts and other benefits.

 

6.            As an Employer, how do I make sure I comply with federal laws relating to the I-9? In a nutshell, Employers must (i) complete I-9s on time; (ii) complete I-9s correctly; and (iii) store and maintain their completed I-9s correctly and for the minimum amount of time. (Instruction on the specifics of proper completion and maintenance of I-9s is beyond the scope of these FAQs.)

 

7.            Can I still be fined if all of my Employees are U.S. citizens? Remarkably, yes. It is a very common misperception that, if all Employees are citizens, an Employer cannot be fined for I-9 violations. But federal regulations prohibit improper completion and storage/maintenance of I-9s, regardless of whether the Employee is authorized to work in the U.S. The emphasis is on the process of completing and storing I-9s, not the immigration status of Employees.

 

8.            What if I only use independent contractors? An I-9 does not need to be completed for an independent contractor. However, the law on this question (i.e., whether a worker is an independent contractor or an Employee) is very complex and fact specific. Please consult with an attorney if you have this question. HSI might have a different take on whether the worker is an Employee as opposed to an independent contractor.

 

9.            Can I complete and store my I-9s electronically? Yes. However, there are special rules you need to follow. These include not making any changes to the content of the form; having a system in place to ensure that no one in your company can change an I-9 once it has been completed; having a record-keeping system (known as an “audit trail”) that will create a secure and permanent record whenever an I-9 is created, completed, or modified in any eay; and other security measures.

 

10.         How can I prepare against an I-9 audit? If you are concerned about potential I-9 fine exposure, the best thing you can do is to explain your concerns to an attorney with experience in I-9 audits and fines. The attorney can conduct a risk assessment, which is a relatively inexpensive way for you to gauge the potential for liability. The risk assessment will not be able to guarantee that you will not be audited by HSI and not be fined, but it will help you better estimate the company’s potential liability; guide you on the steps you can take in order to minimize liability (and explain how your liability will be reduced); and identify best practices going forward.


Remember that these FAQs are informational only. They are not legal advice. Please also note that I-9 rules and policies change quickly. If you have specific questions about current I-9 rules, please consult with an experienced I-9 attorney.

 

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