Editor's note: Katie Clarey is a couple years into covering HR and continues to educate herself and readers on the building blocks of the field with her series, Back to Basics. If you're new to HR (or just need a little refresher), follow along as she speaks with experts and lays out the basics of federal employment law. She can be reached at [email protected].
Joel manages a garden center. He needs to hire a few extra hands to help with the extra customers shopping for mums, pumpkins and gourds in the fall. After interviewing a woman named Martha, he decides to add her to his team.
Martha arrives for her first day. Joel gives her an apron, a nametag and a small stack of paperwork she needs to fill out before her training begins. As Martha begins reading through the papers, Joel asks if she remembered to bring the documents he needs to review for her Form I-9. It slipped her mind, Martha says. Joel checks in with Martha about the documents the next day, but once again, she says she forgot her passport at home.
It’s been three days since Martha’s start date at the garden center, and Joel still hasn’t seen any of the documents he needs to complete her Form I-9. He really needs the help, but he remembers the instructor from his management training stressed the importance of the form.
Joel’s instinct is a good one. The Form I-9 was created in 1986 as a way for employers to verify an employee’s authorization to work in the U.S, according to Raymond Lahoud, partner at Norris McLaughlin. Until the current administration, "the Form I-9 has been just another form," Lahoud said. "As a whole, in the past, employers have not paid as much attention as they should to the process," he said. "Some employers — you’d be shocked — their whole workforce could be undocumented."
But the Trump administration greatly increased enforcement. "Employers need to wake up to the idea that enforcement is happening," Lahoud said.
Filling out Form I-9
Every employer must have a Form I-9 for every employee. "If you’re a corporation with one employee, and you are the president and only employee, you should have an I-9 for yourself," said Lahoud, who chairs Norris McLaughlin’s immigration practice group. "It must be without a doubt part of the HR onboarding process."
The form itself is not complicated. Employees fill out the first page, which instructs them to write down some basic identification information and attest to their authorization to work in the U.S.
The second page instructs employers to review and verify that information by examining the documentation the employee presents. The third page lists the documents U.S. Citizenship and Immigration Services (USCIS) deems acceptable.
The review step is crucial. "If the employee can’t provide those documents, the employer can’t hire," Lahoud said. The employer may also not hire if it’s clear the documents are fake. HR practitioners don’t need to worry about catching immaculately constructed false documents, Lahoud noted. "But you can’t turn a blind eye if it’s obvious."
At this point, employers have the option of copying the documents, though it’s not required. "If the employer does do that, it has to be a company-wide policy," Lahoud said. This step may work in an employer’s favor if it is audited. "If you don’t have copies of the IDs, you’d be turning over the I-9 forms and payroll records. If we’re able to produce evidence that that person presented us documents that appeared to be real, that goes to mitigate penalties and fines," Lahoud said. "But it could work the other way."
Generally, this step must be done in person and within three business days of an employee’s start date. The pandemic has created a wrinkle in this process, however. U.S. Immigration and Customs Enforcement announced in March that it would allow employers taking physical proximity precautions due to the virus to review the documents remotely. Since then, the agency has extended this exemption multiple times.
Beyond day one
Once a Form I-9 is complete, employers must hold onto it for the duration of the worker’s employment. If an employer terminates someone, or if that person leaves, the employer is obligated to keep the form for three years. In the event that an employer rehires the employee within that time frame, it may not be necessary to go through the verification process again. Once those three years are up, employers should shred the form, Lahoud said.
Lahoud recommended HR departments keep Form I-9s in a closed room, just like other confidential employment records. But he suggested they separate I-9s from other documents. "If immigration was going to come and conduct an audit, you have to start turning over documents," he said. "You turn over only what needs to be turned over to limit confusion."
Employers also should look through I-9 forms as an internal audit, Lahoud said. If they come across mistakes, they can make changes, but that will look different depending on the mistake. "If you’re reviewing the Form I-9 and there’s an entire page that’s not completed, you’re going to have to conduct a verification of that individual," he said.
When employers do make changes, they need to make them in the presence of the employee, and all changes should be initialed and dated, Lahoud said. He recommended employers attach a memorandum explaining what change was made and why, as well.
In case of an audit
It’s important that employers understand what audits are so they can be prepared. "Every employer should be aware they could be subject to an audit at any time," Lahoud said.
Audits are different from raids, he noted. A raid may occur, but generally only after an employer has been through several audits. Audits generate money for the federal government, as mistakes they find in I-9 forms lead to fines. "In the end, it’s a big money grab before it becomes criminal," Lahoud said.
Audits are supposed to be random, and there’s no direct evidence of links between audits, Lahoud said. That said, certain industries experience more audits than others. Employers in manufacturing, agriculture and food service get audited frequently.
When audits do occur, employers can keep agents at the front of their facility. Employers are under no obligation to give them any statements or documents at that point. The agents will deliver a summons or a subpoena that orders the inspection of the forms; from there, the employer has three days before they have to take any action.
Once served, employers may want to bring in outside counsel. Of course, if they’re ordered to provide documentation for one or two employees and they’re compliant, the path forward is clear: "Turn over the documents and it’s over," Lahoud said.
Once employers have turned in the forms, immigration will take them and review them. "Sometimes it takes a week," Lahoud said. "Other times it takes more than a year.