05 Jun All About Form I-9 and Mistakes to Avoid
Every employer is undoubtedly familiar with the Form I-9, Employment Eligibility Verification. New employees are required to fill one out when they start work to prove they are authorized to work in the United States and employers must attest to it within 3 days. The form itself is only 4 pages, including an appendix of acceptable documents. The instructions are 15 pages while the M-274 Handbook for Employers contains 94 pages of detailed information on how to precisely fill out the form. Despite the importance of this mandatory document, realistically only a small fraction of employers will read 109 pages of instructions, then remember for every single form. Not only that, some of the common mistakes that ICE will fine over are not even included in either of those two documents.
Wait, ICE issues fines over Form I-9?
ICE lists their inspection process and the fine matrix on their website here (https://www.ice.gov/factsheets/i9-inspection#wcm-survey-target-id) but last year boasted of stepping up I-9 enforcement (https://www.ice.gov/news/releases/ice-delivers-more-5200-i-9-audit-notices-businesses-across-us-2-phase-nationwide). It is imperative to fill out the form correctly, and although ICE may issue lower fines for first-time offenders that made a good faith effort, the agency has also arrested employers over misconduct.
So what errors are more important than others?
ICE divides I-9 errors into two categories: substantive and technical. Substantive errors may earn a fine whereas technical errors only earn a fine after ICE issues notice to correct and the errors are still uncorrected during a follow up inspection. There are several obscure sources of law that divide errors into the two categories, and although ICE has stated further guidance will be forthcoming, it has relied on these sources:
(1) An internal INS memo from 1997 by Paul Virtue (Virtue Memo): INS Memo 96 Act # 058, HQIRT 50/5.12, 09/19/1997, Paul Virtue (INS), provides INS field guidance on interpreting the INA 212(a)(9)(B) unlawful presence provision,
(2) A 2009 ICE Operations Message (ICE Message – in which the agency states that it is “in the process of promulgating a final agency rule specifying precisely which verification failures should be considered substantive or ‘technical or procedural’ violations.”): Operations Message, released July 13, 2009,
(3) Ketchikan Drywall, a Ninth Circuit court case from 2013: Ketchikan Drywall Services, Inc. v. Immigration & Customs Enf’t, 725 F.3d 1103 (9th Cir. 2013), and
(4) USA v. ORM, an OCAHO case also from 2013: United States v. Occupational Res. Mgmt. Staffing, Inc., 10 OCAHO 1166 (O.C.A.H.O. Jan. 23, 2013).
Putting all four of these sources together yields the below chart of errors:
| Substantive | Technical |
|
– No I-9 on file – Social security numbers in section 1 does not match section 2 (Source: ORM Inc) Section 1 – Employee’s name not printed – No check mark next to citizen/national/LPR/alien authorized to work – Multiple boxes checked (Source: ORM Inc) – No A number if LPR/alien box checked (but technical if A number is provided in Section 2) – No expiration date next to alien authorized to work if checked – Employee attests to US citizenship and presents permanent resident card or foreign identification document (Source: ORM Inc) – No employee signature – Employee attestation not completed at time of hire Section 2 – Improper List A, B, or C documents reviewed or verified – No document title, number, issuing authority (Source: US v. Candelight Inn), or expiration date of List A, B, or C document (but technical if copy of document is retained) – No employer attestation signature – Employer attestation not completed within three business days of hire (Virtue) Section 3 – Improper List A, B, or C documents reviewed or verified – No document title, number, or expiration date of List A, B, or C document – No employer attestation signature – Employer attestation not completed on or before work authorization expired |
– Wrong I-9 edition – Spanish version (except in PR) Section 1 – No employee maiden/other name, address, or date of birth – No employee attestation date – Preparer translator box not checked/no preparer translator name/date (guess; no guidance since Virtue memo said failure to provide name is technical) Section 2 – No employer title, name, address – No first day of employment – Failure to date section 2 within 3 business days of date employment begins (Source: ICE Operations Message of July 13, 2009) – No business title, name, or address – No employer attestation date Section 3 – No date of rehire (if applicable) |
What about E-Verify?
It is generally recommended to use E-Verify, but it is not a replacement for filling out a Form I-9. In fact, during the most recent government shutdown, E-Verify was inoperable.
Conclusion
Ensuring your company’s Forms I-9 are properly filled out is vital when facing an ICE audit. Enforcement has continuously increased, and certain industries, such as food service and construction, are not only major targets for ICE but also lend themselves to I-9 errors due to the fast-paced nature of the work and the lack of dedicated HR channels to fill out government forms. At ALG, we have experience advising companies on proper Form I-9 techniques as well as conducting internal audits. Verifying Forms I-9 can be a tedious chore, but it is one that is infinitely cheaper to fix internally rather than in the middle of an audit with fines as a possibility.
The above does not constitute legal advice.
At ALG, most of our staff has personal experience with the U.S. immigration system. We channel this experience into our work to provide the best possible service to our clients. Our passion for the field drives us to stay on the cutting edge of U.S. immigration law.
Get in touch with our experts for your immigration needs. Call our office directly at (512)732-0555, or email us at [email protected].