By Hugo P. Rojas
This month marks the 30th anniversary of the adoption of the I-9 – the form that requires employers to check the immigration status of its prospective employees. While employers have become familiar with the process, over that time there have been 11 different versions of the I-9. So the introduction of the latest version, released just last week, is in keeping with the government’s continuing effort to refine the process. This time however, the changes to the Employment Eligibility Verification process arrive on the heels of a significant increase in the penalties for I-9 violations. These changes will impact employers significantly, and violations will carry a heavier consequence.
Increased Penalties for I-9 Violations
First, the Department of Homeland Security (DHS) and the U.S. Department of Justice recently increased the penalties for I-9 violations.
Under the new fine schedule, employers face penalties such as the following:
- I-9 paperwork violations: $216 – $2,156 per Form I-9;
- Knowingly employing unauthorized alien (first offense): $539 – $4,313 per violation;
- Knowingly employing unauthorized alien (second offense): $4,313 – $10,781 per violation;
- Knowingly employing unauthorized alien (third or more offenses): $6,469 – $21,563 per violation;
- E-verify employers – failure to inform DHS of continuing employment following final nonconfirmation: $751 – $1,502 per violation.
The DOJ also increased the penalties for document abuse and discriminatory practices in addressing I-9 issues. Document abuse usually occurs when an employer asks for specific documents or for more or different documents after the employee has already presented qualifying I-9 documents. This violates the I-9 rules, which require that the employer allow the employee to choose which document or documents to present from the I-9 List of Acceptable Documents. The employer then must review what is presented to confirm whether the document or documents meet the verification requirements.
Unfair immigration-related employment practices may occur when an employer treats job applicants and/or new hires differently based upon their immigration status while implementing I-9 procedures or addressing I-9 issues.
Penalties for document abuse and unfair immigration-related employment practices are now as follows:
- Document abuse: $178 – $1,782 per violation;
- Unfair immigration-related employment practices (first offense): $445 –$3,563 per violation;
- Unfair immigration-related employment practices (second offense): $3,563 – $8,908 per violation;
- Unfair immigration-related employment practices (third or more offenses): $5,345 – $17,816 per violation.
These penalty increases are substantial. Most significant is the increase in the range for fines for mistakes or omissions on Form I-9 – known commonly as paperwork violations. These penalties will increase by 96 percent, to $216 – $2,156, from $110 – $1,100. The new penalties went into effect on August 1, 2016, and will apply to violations occurring after November 2, 2015.
The New I-9 Form
Second, on November 14, 2016, the government announced the new version of the Form I-9.
The most significant change is the creation of a smart Form I-9 that users will be able to access and fill out on USCIS’s website. This smart form includes a number of new features including drop-down menus, hover text and real-time error messages, which are all designed to guide the user through the process and reduce errors. Employers will still have the option to complete a paper version of the form. Regardless of the manner of completion, employers will still be required to keep hard copies of printed forms with signatures. In addition, another significant change involves the formatting of the form, which now is able accommodate multiple translator and preparer certifications.
The government will allow employers to continue using the current version (issued in 2013) through January 21, 2017. You should use this two-month period to review and gain an understanding of the new Form I-9 before transitioning to it.
What This Means for Employers
The increased penalties are a reminder of why I-9 compliance is so important. The updated form and increased fines show the government’s efforts to increased enforcement of immigration laws in the workplace. Thus, it is more important than ever to ensure that you have comprehensive I-9 compliance policies and procedures in place.
Because most I-9 violations are considered continuing violations until they are corrected, you should contact Davis & Kuelthau to discuss a review of your I-9 compliance program. Getting ahead of any problems and taking the necessary steps to cure mistakes and prevent future errors, can help prevent the imposition of significantly increased penalties.
If you have any questions about this article, please contact your Davis & Kuelthau attorney or the author, Hugo P. Rojas at 414.225. 1413 / firstname.lastname@example.org.