What is the Form I-9, and Why is it Important?

The Immigration Reform and Control Act of 1986 (IRCA) requires employers verify the identity and work authorization of all newly-hired employees by completing the Form I-9 and reviewing original documentation to prove each employee’s identity and legal authorization to accept employment in the United States.

The Form I-9 appears to be a simple, one-page form, but it can be a source of confusion and panic for both large and small employers, as the form’s simple appearance is deceptive, and even simple errors can result in civil fines of up to $1,100 per form. Employers must ensure they use the proper version of the Form I-9,  and comply with strict rules about timing; the employee must complete Section 1 of the form by the first day of employment, and the employer must review the required documentation and complete Section 2 by the end of the third day of work. Employers also must require employees to present acceptable proof of identity and work authorization (without specifying which documents the employees should present or asking for more or different documentation than is required by law), update the Form I-9 for employees whose work authorization expires, and retain I-9s on file for all current employees (and certain terminated employees) in a secure location.  

The Broad Meaning of “Knowing”
IRCA prohibits employers from knowingly hiring or continuing to employ unauthorized workers. Under IRCA, proper completion of Form I-9 shows “good faith” compliance with the law and can be used as a defense by an employer charged with knowingly employing an unauthorized worker. Employers, however, should take steps to ensure they do not face such charges in the first place, as the charge alone can harm a company’s reputation.

The regulations define “knowing” more broadly than many employers expect. To be liable for knowingly hiring an unauthorized worker does not require the employer actually be aware the individual being hired is not legally authorized to work in the United States. “Knowing” includes “constructive knowledge.” This means, if an employer has sufficient information to suspect that an employee is working illegally and the employer does not take action, that employer may be deemed to be “knowingly” employing undocumented workers. Such a finding can result in massive fines (up to $16,000 per unauthorized worker) and, if a pattern or practice
of employing unauthorized workers is found, may also result in criminal
sanctions, up to and including imprisonment.

Best Practices to Ensure an Authorized Workforce
To avoid hiring unauthorized workers (and potentially becoming tomorrow’s headline), there are numerous steps a company can take. These include:

• Providing I-9 training to human resources;
• Undergoing a voluntary I-9 audit;
• Implementing an electronic I-9 program;
• Using the federal government’s E-Verify system or the Social Security Administration’s Social Security Number Verification Service;
• Implementing a Social Security Mis-match policy and a comprehensive immigration compliance policy; and
• Ensuring the proper use of and immigration compliance by subcontractors.  

Conducting annual self-audits of I-9 forms may be one of the best ways for a company to confirm its records are in order.

As currently structured, E-Verify does not immediately report out duplicate active records in its database. The same social security number could be in use at another employer, and potentially multiple employers, across the country. Although E-Verify does have a photograph feature that allows employers
to check the photograph where an employee presents an Employment Authorization Document or permanent residence card, employers otherwise have no foolproof way to determine if a new hire is presenting valid identification documents created under fraudulent circumstances.

The focus on immigration reform highlights its importance to the American public and government. Until the current system is reformed, employers in all industries must recognize compliance with the current IRCA regulations is mandatory, not voluntary. It is as critical a business function for all U.S. employers as any other regulation.  

Catharine Ellingsen is vice president and deputy general counsel for Republic Services, Inc.

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