One of the most commonly misunderstood compliance issues for any employer is the US Citizenship and Immigration Services (USCIS) Form I9. Form I9 is the document all US employers are required to have completed when hiring a new employee to assure that they are legally eligible to work in the United States. While there has been a reduction in Form I9 Audits from USCIS in 2015, employers should be prepared as the five year trend is on the rise. In fact, I am aware of several ambulance providers currently dealing with audits.
The Immigration Reform and Control Act (IRCA) of 1986 requires employers to examine documentation from each newly hired employee to prove his or her identity and eligibility to work in the United States. The IRCA led to the Form I-9 Employment Eligibility Verification, which requires employees to attest to their work eligibility, and employers to certify that the individual presented documents to the employer that appeared to for the individual and genuine. The form has very specific rules regarding when the certain section of the form must be completed, which documents the employee can proffer as proof of eligibility, and how information must be present in the different sections of the Form I9.
I believe that most employers understand that they must obtain certain information from every newly hired employee. However, with the Form I9, there are very specific dates upon which the different sections of this form must be completed. This is where the greatest number of compliance issues arise when dealing with I9 Audits.
The Form’s Timing
Section 1 of Form I9 is the Employee Information and Attestation section and must be completed by the employee by the close of business on the employee’s first day of employment. This section consists several mandatory fields of the personal information of the new employee and two optional fields. It includes the employee’s full name, date of birth, address, and social security number, email address (optional), telephone number (optional). In addition, the employee must attest that they are a citizen of United States, a Non-Citizen National, a Lawful Permanent Resident, or an Alien Authorized to Work in the US. The employee must provide an Alien Registration Number or USCIS Number if they check that they are a lawful permanent resident. If they are an Alien Authorized to Work, they must provide the date their authorization expires and their Alien Registration Number. The employee must sign the document and date it. If there is a translator or preparer, they must complete the certification at the end of Section 1.
Section 2 is the Employer or Authorized Representative Review and Verification section and must be completed by the close of business on the third day of employment. This section is where many make a very simple error. First, there is a place at the top of this section where the employer must list the employee’s full name. This frequently gets left blank. Next, the employer must identify the document(s) that the employee is presenting as proof of identity and employment authorization. In Column A, there is a list of acceptable documents, typically a Passport, Permanent Resident Card, or Employment Authorization Document. One or more of these documents can be sufficient. Alternatively, the employee can present one document from each List B and C. These are typically a driver’s license and a birth certificate. These documents don’t have to be copied, but if they are, they must be kept with the Form I9.
It is critical that the employer complete the Certification section of Section 2. This is another area where employers frequently make mistakes. In the Certification, there is a section to mark the date of the employee’s first day of employment. I often find this section blank or find that the employer mistakenly enters the date that they viewed the employee’s documents. The employer needs to complete the Certification section and date it, entering the employer’s business name and address. Failure to complete any of these sections can lead to a Substantive or Technical Violation and fines.
Section 3 of the Form I9 is completed by the employer when re-verifying that an employee is authorized to work or when rehiring an employee within three years of the date on the original Form I9. It is important that employer develop a mechanism for identifying and ensuring any expiring document(s) that requires re-verification. Of course, an employer can always complete a new Form I9 for a returning employee.
Title 8 of the Code of Federal Regulations Section 27a.10 established a fine range from $110 to $1,100 per violation. Fines can be for either a Technical violation, one where an employer fails to ensure that the employee provided all of the personal information, name, DOB, address, etc. or a Substantive violation, where the employer fails to review and verify the required documents or when someone is working without authorization. These fines can be issued for each individual violation and can be substantial.
Other common errors that carry fines include not documenting the title of the document that the employee presented as proof (example, US Passport, State Driver’s License and Social Security Card). Not initialing corrections made to the form when corrections are necessary. Not re-verifying those work authorization documents that require re-verification.
All of the fines are avoidable by ensuring that you clean up the Form I9 process within your organization. First, services should ensure that only individuals trained and knowledgeable in completing the Form I9 are involved in this process. The USCIS provides great Form I9 training for free on their website. In addition, USCIS has great instructions that accompany the Form I9 and provide for video instruction on their website. Following these instructions carefully will be the best guarantee that you will complete the form correctly.
In addition, every ambulance service should conduct an audit of their Form I9 processes within their organization. I would have one individual, who is knowledgeable about the rules, conduct a review of all Form I9s for current employees and for any employees who were terminated within the last five years. Employers can purge any Form I9 documents for employees who are terminated after one year from termination or three years after the date of hire, whichever date is later. However, employers should have Form I9 documents on all employees who are currently on your payroll.
For purposes of record keeping, it is best to keep all Form I9s in one location so that they can be easily provided in the event of an audit. Employers are not required to make copies of the documents an employee provides to the employer as proof of authorization. However, if the employer does copy the documents, they should be kept with the Form I9. I recommend employers make copies of those documents, store them with the Form I9, and be kept in a secure location. If those documents are stored electronically, it is critical that there are sufficient systems in place to ensure the integrity and security of the documents including an electronic audit trail.
Many employers utilize e-Verify, the online system hosted by the USCIS in partnership with Social Security Administration (SSA) that allows employers to search the linked federal databases to ensure that employees are eligible to work in the US and verifies the employee’s Social Security Number. e-Verify is free to employers and is voluntary throughout the country. However, you should check you state law as many states have passed legislation requiring the use of e-Verify. It is easy to enroll and is a necessary part of any I9 compliance plan.
I can tell you that all of the providers that I have questioned about this issue assured me that they have adequate processes in place to ensure compliance. However, after we discussed the timing and information required for the different sections of the Form I9 that were identified in many of the audits I am aware of, it quickly became apparent that most did not really have safeguards in place.