Workplace Enforcement and Basic I-9 Compliance

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On January 10, 2018 Immigration and Customs Enforcement (“ICE”) executed its “7-Eleven Operation.” According to ICE’s Deputy Director, Thomas D. Homan, “ICE will continue its efforts to protect jobs for American workers by eliminating unfair competitive advantages for companies that exploit illegal immigration.” Both Fox News and NPR described ICE’s efforts as “raids.”

On the same day as the 7-11 Operation, ICE released a statement on worksite enforcement. This statement describes a “three prong approach” to enforcement, which includes “compliance through I-9 inspections.” Except in some very limited circumstances, Form I-9 is must be used by all US employers to document the identity and employment authorization of every person hired (8 CFR § 274a.2). Civil penalties may be assessed for failure to comply with I-9 requirements.

An employer’s obligations for I-9 compliance begin on the day en employee is hired. A “hire” may occur when “a person or entity uses a contract, subcontract, or exchange entered into, renegotiated, or extended” to obtain labor. Each person hired must (a) complete section 1 of Form I-9, and (b) present documentation establishing his or her identity and employment authorization to the employer. A list of acceptable documentation is available from USCIS. Once the employee has completed section 1, the employer (or its agent) must review it for completeness.

Within 3 days of hiring an employee, the employer (or its agent) must (a) complete section 2 of Form I-9, and (b) examine the documents presented by the employee to ensure that the documents appear genuine and relate to the employee. For any employees whose employment authorization expires, the employer must immediately complete section 3 to re-verify the employee.

An employer must keep Form I-9 on file for each employee for a minimum of 3 years. USCIS provides a formula for calculating the amount of time that Form I-9 must be kept on file. An employer may also take copies of the documents presented by employees. If the employer decides to take copies of these documents, it must store them with the employee’s Form I-9.

I-9 compliance may appear as simple as completing the form and reviewing the documents, however, there are many details that require careful attention. For example, the “document number” on a green card may not be immediately apparent. Despite these challenges, an employer can make a good faith effort at compliance and minimize fines by reviewing the Handbook for Employers and ensuring that every employee’s I-9 form is complete and up-to-date.

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