As a small business owner, compliance is vital. Failure to comply with immigration laws can result in fines and other significant consequences.
One requirement is to file an I-9 Employment Eligibility Verification form for every employee. The employee must provide appropriate proof of their legal authorization to work in the United States, whether or not they are a citizen. You do not need to file I-9 forms for contractors (whether independent contractors or working for a temp agency) or employees physically located outside the U.S. However, you are forbidden to knowingly work with an independent contractor not authorized to work in the U.S.
I-9 forms must be produced on demand, or you may face fines. Many employees fall afoul of the technical requirement to keep I-9 forms on file and may only discover they have inadvertently disposed of one prematurely when an inspector shows up.
So, how long do you need to keep these forms?
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Current Employees
Employers must retain an I-9 form for each employee for three years or one year after the date employment ends. In practical terms, this means you must keep the I-9 form for current employees as long as the person is working for you.
Former Employees
You are allowed to remove forms after an employee has been separated from your company for a year, as long as this is at least three years from the hire date. You can, of course, choose to keep the forms longer, but this is not recommended or necessary.
Proper Storage of I-9 Forms
You can store forms on paper, microfiche or microfilm, or digitally. Paper forms should not be kept with the employee file, as that can result in premature removal. However, you do need to make sure they can be easily located. Like all essential documents, they should be stored in a way that protects them from fire. Some companies prefer to keep them off-site as they are seldom needed.
If you keep the form digitally, you need to comply with specific minimum standards. You also need to have periodic audits to ensure that the stored documents are still accessible. You also need to be able to print copies as required.
Inspection of I-9 Forms
I-9 forms can be inspected at any time and with only three days of notice. You will receive written notification from U.S. Immigration and Customs Enforcement (ICE).
The inspector may choose to come to the place you have the forms stored, or they may request that you bring forms to a field office. They may ask you to print out electronic records. In some cases, they might ask you to send the documents certified mail or electronically.
I-9 inspections are sometimes triggered by reports but can also be random. Be aware that fraudulent I-9 requests are occasionally made. ICE never asks for these forms by email, so any email requesting copies should be considered suspicious and likely fraudulent.
COVID-19 has made some of this stuff challenging. U.S. Citizenship and Immigration Services (USCIS) has recommendations about completing forms and inspecting documents remotely, including performing a physical inspection once normal operations resume. They have given some leeway on the standard requirement to fill out the forms and review documents in person, but this still has to be done after the pandemic. There is an exception in place for permanent remote workers.
Due to COVID-19, any I-9 inspections conducted will likely be done via certified mail or other remote means for the time being.
Penalties
Fines for not properly retaining documents range from $234 to $2,332. If they think you knowingly hired an unauthorized worker, the range for a first offense is $583 to $4,667. However, the first problem is more common. These penalties can rapidly add up if you have more than one missing an I-9 form.
Another thing that comes up is unlawful discrimination. While you are required to verify the immigration status of your employees, you need to be careful to do so in a way that doesn’t discriminate against non-citizens. For example, you can’t ask non-citizens for documents not available to them, you have to let people choose from the list, and you have to fill out I-9s for everyone, not just people who look or sound “foreign.” Discrimination can lay you open to lawsuits, and you may be asked to rehire a fired employee with back pay, for example.
Engaging in a pattern of hiring unauthorized workers can result in large fines or imprisonment.
All of this can be complicated and expensive. Asking for the right documents, retaining I-9s correctly, and avoiding other problems is a lot of work for your HR department. However, working with a professional employer organization (PEO) can help to ensure that you’re compliant with I-9 retention requirements and other potential issues.
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