This article was last updated on 5/15/2019.
If you’re a small business owner, you already know that the mandatory Form I-9 is tricky to complete. The I-9 is necessary to verify an individual’s right to work in the USA — and requires a careful review of specific types of identification within three days of an employee’s start date.
But does the time element really matter? Who’s going to check? Would the U.S. Immigration and Customs Enforcement (ICE) really target small businesses that never make waves and slap them with costly fines?
The answer could be “yes” to all if President Trump makes good on his promise to hire 10,000 more ICE agents and 5,000 more Border Patrol agents. This broad new threat of enforcement is all the more reason mom-and-pop businesses need to stick to the rules and make sure their paperwork is complete and compliant.
There are a lot of misconceptions surrounding I-9 paperwork. Let’s take a closer look at two of the biggest, so you don’t put your business at risk:
When it comes to the I-9, the devil is in the details. Employers who don’t pay attention to how and when the form is completed may face penalties for mistakes that could have been avoided.
Time matters. The three-day rule is inflexible. If an employee doesn’t produce the proper identifying documents within the three-day deadline, the employee should be terminated. Immediately.
Backdating the I-9 isn’t a solution either. It’s illegal, and if discovered, carries a hefty penalty for fraud.
It’s critically important that the I-9 be completed on time — with the employee submitting all supporting documents — for one key reason: It legally verifies that an individual has the right to work in the USA.
Without it, questions about a worker’s legal authorization could arise. And if ICE agents choose to investigate, they could conclude that you knowingly hired illegal workers, leaving you open to criminal prosecution.
In fact, falsifying I-9 documents is among the worst actions an employer can take when hiring. In February 2015, an immigration judge fined a California-based manufacturer $12,000 for not timely preparing I-9 forms for 18 employees. Liberty Packaging — a very small business — was penalized for acting in bad faith by backdating the forms after a notice of inspection from the government.
In the Liberty Packaging case, ICE sought the maximum baseline penalty for each violation, plus additional fines for acting in bad faith, the seriousness of the violations and the presence of unauthorized workers. The judge fined the company $650 per violation.
Inspections could include workforce site raids to detain and arrest undocumented workers, as well as an I-9 audit, also known as a “silent raid.”
Fines vary, depending on the nature of the offense. “Technical” issues, such as an employee not entering his or her birth date, address or date of hire can result in fines ranging from $230 to $2,236 per violation, although such fines are rarely levied.
But “substantive” failures — which include an employee failing to sign the form or an employer not checking personal identification documents — can result in fines ranging from $539 to $21,563 per violation if an employer knowingly hired or continued to employ an unauthorized alien.
Worst still, if you engage in a pattern of hiring unauthorized individuals, you could face criminal penalties of $3,000 per individual and six months in prison.
Something else to keep in mind: ICE assesses penalties per form, so, depending on the number of forms and violations per form, the total could be significant.
The message here is clear: Compliance with I-9 standards is mandatory for small and large businesses — and inspections are possible for companies of any size. If you don’t comply, you’ll pay.
To avoid compliance issues:
Don’t let your new hire responsibilities turn into a paperwork nightmare. We can help you meet the requirements more easily and efficiently with our online I-9 and W-4 app.
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