More I-9 audits, big fines: What HR needs to do now
November 23, 2009 by Sam NarisiPosted in: HR Tech, Immigration, Records documentation, Special Report - Tech
The feds haven’t finished the first massive I-9 audit, and they’ve already announced a new round — this time targeting 1,000 employers.
Last week, Immigration and Customs Enforcement (ICE) sent notices of inspection (NOIs) to 1,000 businesses, alerting them that feds want to look at their I-9 records.
The agency described the audits as part of its strategy to crack down on employers’ hiring and recordkeeping practices. The increased enforcement started in July with 650 audits. ICE announced at the time that more would be coming soon.
About half of those 650 audits have been completed, and a lot of fines have been dished out so far, with 61 employers paying a total of $2.3 million so far. ICE classified 16% of all inspected I-9s as “suspect,” and 267 employers are still scheduled for audits.
New system for fines
The agency also explained its new system for assessing fines. Penalties used to be based on five factors: business size, good faith, seriousness, employment of unauthorized aliens, and history of compliance. Instead, ICE will now consider:
- whether the employer knowingly hired illegals or committed a paperwork violation
- prior offenses
- the percentage of total reviewed I-9s that have violations, and
- other factors such as business size, good faith, seriousness, employment of unauthorized aliens, and history.
Employers can be fined up to $1,000 for the first offense, or $2,500 for a knowing violation. For detailed tables showing how ICE calculates the fines, click here.
What HR can do
The best way to avoid fines: Don’t wait for the feds to come knocking. Experts recommend companies conduct their own internal I-9 audit at least once a year.
When an audit does occur, it’s critical for all forms to be properly stored and maintained — when a company gets an NOI, HR is required to turn over all I-9s within three business days. Keep the forms together in a dedicated drawer or binder, and don’t save I-9s for longer than you have to (according to federal law, you need to keep them for three years or one year after the employee’s termination, whichever is longer).
Also keep in mind:
- Respond quickly to an NOI, even if it’s just to ask ICE for a time extension
- Notify all employees and managers who handle I-9s
- Choose one person to correspond with ICE to avoid inconsistency in the information given, and
- Secure all records — ICE may view missing forms as an attempt to destroy evidence.
November 25th, 2009 at 2:16 pm
What do you mean “keep the records for one year or three years whichever is longer” isn’t three years always longer than one year???
November 25th, 2009 at 2:31 pm
To answer your question Riet:
Maybe this explanation will help. Regulations state you must keep the forms for at least 3 years from the date of hire, but can not be discarded until one year after termination. If the person was employed two years or more, then you must only keep the form for 1 year after they are terminated, thus a total of 3 years minimum from the date of hire.
November 25th, 2009 at 5:46 pm
The “keep the records for one year or three years whichever is longer” is based off the the hire date and termination date.
Example:
Employee A: Hire date 2/1/04; Termination date 2/1/08
You first add three years to the hire date (2/1/07) and then add one year to the termination date (2/1/11)
Then you keep the I9 for the date of “whichever is longer”. In this case you keep it until 2/1/11.
Example:
Employee B: Hire date 2/1/04; Termination 2/1/05
You first add three years to the hire date (2/1/07) and then add one year to the termination date (2/1/06)
Then you keep the I9 for the date of “whichever is longer”. In this case you keep it until 2/1/07.
November 30th, 2009 at 11:50 am
Karina
Your Example A is not correct. Per the I-9 Manual, Handbook for Employers (available online), it states:
“Forms I-9 must be stored for 3 years after the date you hire an employee, or 1 year after the date you or the employee terminates employment, whichever is later. For example, if an employee retires from your company after 15 years, you will need to store his or her Form I-9 for a total of 16 years.”
In other words, for Example A, the I-9 for the employee would be retained for 5 years total until 2/1/09 (which includes the 1 year past termination).
November 30th, 2009 at 1:57 pm
I’m confused, if we currently have employees on staff who’ve been employed since as early as 1995, do we still need to keep their I-9’s on file? Obviously much longer than 3 years! And yes, I still have their I-9s!!!
November 30th, 2009 at 3:20 pm
Dar,
Yes, if the 1995 employees are still employed you need to maintain the I-9 for one year after termination (which is a later date than 3 years after date of hire or in your case 1998).
Just look at it this way…if an employee terminates before they have been with you three years, you have to keep the form for three years after date of hire. If they stay three or more years, you need to hold them for one year after the date of termination.
November 30th, 2009 at 3:27 pm
Ahhh…. my example was too simplified because year three is a bit more difficult. For year three you need to look at the hire date and add three years then look at the termination date and add one year. At that point the later date would be the discard date. I guess that is the best way to handle this whole mess!
Boy what a crazy concept!
December 1st, 2009 at 9:10 am
If you go to their website reviw the I-9 Handbook – actually a well written document. As for copies of supporting documentation, this comes from the handbook. :
Retaining Copies of Form I-9 Documentation
You may choose to copy or scan documents presented by an employee, which you must retain with his or her Form I-9. Even if you retain copies of documentation, you are still required to fully complete Section 2 of Form I-9. If you choose to retain copies of employee documentation, you must do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.
December 3rd, 2009 at 10:47 am
This may be a silly question but it’s always confused me…Each time that an employee renews his/her Drivers license, do I need to update the I-9 or is it ok to keep the original one on file as long as it was valid at the time of hire?
December 4th, 2009 at 10:23 am
I have a question about incomplete I-9s. I was recently hired as HR manager for a small company (80 employees). I have discovered many I-9s in personnel files that are incomplete. When I say incomplete, I mean that the employee completed their portion of the I-9 but a company representative did not complete or sign and date the employer portion of the document. I want to correct this problem but I am not sure how to go about it. The form requires the employer representative to attest that employee began work on certain date and then to sign and date the document. If I complete the documents now with my signature and present date, would that be acceptable? I have also noticed that some I-9s used were not the most current form of the document. I know that fines can be as high as $1000 per document for infractions. Can someone advise as to the best way to handle this situation? Also – do you agree that the best practice is to maintain I-9s separate from the main personnel files? Thanks so much!
December 4th, 2009 at 10:44 am
Sherry,
I would recommend you NOT sign the forms, but should do the I-9’s correctly with the documentation from each of those affected. Do sign off on these forms will get you in legal trouble personally.
Keep your I-9’s separate. In their on-line handbook, it clearly explains how you should maintain the files, and gives you options on supporting document copies.
December 4th, 2009 at 11:28 am
Thanks Harold for your reply. I’m not sure I quite understand “but should do the I-9’s correctly with the documentation from each of those affected”. Do you mean to only complete Section 2 – but not the Certification? Thanks again.
December 4th, 2009 at 3:13 pm
Sorry, Sherry – do the I-9’s from beginning to end new on those employees that have incomplete I-9’s. Clearly explain the reason, and thank them for their cooperation. Make them bring in proper documentation from the current listing on the I-9, since it may have changed since they were first hired.
If you find you have illegals on staff – call legal counsel quickly.
February 13th, 2010 at 5:07 pm
I recently took over the HR dept. The company just introduce Everify. I recently hired a few workers and recieved a Tentative Non Confirmation. They have not started working for us, does this mean I still have to keep their I-9 and letter with the rest of my I-9’s? Also for those who are working, and the required days have passed and they have not brought me documentation that they clear the T.Non confirmation, what steps should I take