I-9 forms are a routine part of the hiring process, but shouldn’t be looked at as just another piece of paperwork.
Restaurants and other employers can face hefty fines and possible criminal penalties from U.S. Citizenship and Immigration Services if they’re audited and found to have knowingly hired or continued to employ ineligible workers or made substantive or uncorrected errors in the forms, including not being able to produce an I9 form for each employee. The I-9 is used to verify an employee’s identity and eligibility to work in the United States.
For first-time offenses, penalties can run as high as $1,100 per incorrect I-9 form for failing to comply with I-9 requirements or committing document abuse, or $3,200 for knowingly hiring or continuing to hire unauthorized workers, fraud, or discrimination.
Want to improve your I-9 compliance? Download the 2014 NRA Show educational session, “Avoiding the Ultimate I-9 Penalty and the Illusion of an E-Verify Safe Harbor.”
If your restaurant is audited for I9 compliance, auditors will treat any error or inconsistency as a red flag. Here are seven areas where employers tend to go wrong, according to Kathleen Campbell Walker, an attorney with Cox Smith in El Paso, Texas. Walker presented a session on I-9 compliance during the 2014 NRA Show:
· Timing: Employees must complete, sign and date Section 1 of the I-9 form no later than their first day of work, but can’t be asked to fill it out before they’ve accepted a job offer. Employers must complete Section 2 of the form within three business days of the employee’s first day of work. This means that if an employee starts work on a Monday, employers have until Thursday to complete Section 2.
· Incomplete forms: Errors like failing to provide an acceptable address, failing to sign, and failing to date the form are common, Walker said. The employer is responsible for checking to see that Section 1 of the form is accurate and complete. Make sure the employee accurately signs and dates the form and that they give a legal street address. P.O. boxes cannot be used.
· Over-documentation: While it may seem like you’re being extra diligent by requesting additional documents to verify an employee is legally eligible to work in the United States, you can’t go beyond what the form requires: either one document from “List A” or a combination of one document each from “List B” and “List C.” The documents also have to be the employee’s choice. “You can’t demand certain documents,” Walker said. “You have to give them options. You can’t say they must provide a certain document.” Asking for specific or additional documents could be considered discrimination, Walker said.
· Failing to examine original form or document: Technology has helped restaurateurs in many ways, but it can’t be used to review I-9 forms or the documents the employee provides. You must review the original forms and documents in person, and not via photo or video.
· Form corrections: Any corrections or changes an employer makes to the forms must be initialed and dated by the employer. If corrections to Section 1 are needed, the employee must make them.
· Language barrier: The Spanish-language version of the I-9 form can only be used by employers and employees in Puerto Rico. All other employers and employees must complete the English version. Walker recommends keeping a laminated form of the Spanish-language version (link to form) on hand so that Spanish-speaking employees can refer to it for guidance.
· Wrong documents: Make sure you check that the documents the employee presents are on the USCIS list of acceptable documents. USCIS has a list of acceptable documents, along with photos, on its website.