USCIS FORM I-9
NEW FORM EFFECTIVE SEPTEMBER 18, 2017
As a reminder, the USCIS has updated the Form I-9 and Employers must begin using the new form effective today, September 18, 2017. The new form has a revision date of “0/7/17/17 N”.
Another significant change is the timing when the Form I-9 must be completed. Previously, the I-9 form and accompanying instructions stated that the employee must complete Section 1 by the end of the first day of employment. Now, the words “the end” have been deleted from the phrase, and it now reads the employee must complete Section 1 “by the first day of employment.” With this change, new employees must complete Section 1 at the time of hire–which according to the instructions is on the “first day of their employment for pay.”
The USCIS handbook instructs:
“[If an employee begins employment on Monday, you must review the employee’s documentation and complete Section 2 on or before Thursday of that week. However, if you hire an individual for less than three business days, you must complete Section 2 no later than the first day of employment.”
The employee is still permitted to choose which document(s) they will present from the Form I-9 Lists of Acceptable Documents. An employer cannot specify which document(s) an employee will present from the list. If the employee provides one document from List A, or a combination of one document from List B and one document from List C, then the this will suffice; however, if the employee presents a List A document, the employer may not ask or require the employee to present List B or List C documents. Likewise, if an employee presents both a List B and a List C document, the employer cannot ask or require the employee to present a List A document.
It is important to remember that the employer is required to physically examine each original document the employee presents to determine if the document reasonably appears to be genuine and relates to the person presenting it. When completing the I-9 Form it is important to make sure the person who examines the documents is the same person who attests and signs Section 2 otherwise the attestation can be deemed invalid. The Employers Handbook also instructs that “[t]he employee must be physically present with the document examiner”.
EMPLOYER FINED DUE TO HR DIRECTOR’S I-9 FAILURES
An employer is responsible for complying with federal laws that mandate every employer verify that an individual is authorized to work in the United States. While there is a “good faith” defense which an employer may be able to assert to avoid liability due to certain I-9 infractions, an employer cannot assert that defense simply because their HR Director did not do his job.
In a recent decision, the court upheld the issuance of a penalty of $305,000.00 against an employer for failing to comply with the USCIS I-9 requirements. Over a decade ago, the company rapidly expanded their workforce. Understanding the need to ensure compliance with the numerous state and federal employment laws, including verifying employment eligibility, the company hired a HR director who was well-versed in human resource management.
However, and unfortunately, when Immigration and Customs Enforcement (ICE) inspected the company’s documents, multiple violations were found. ICE alleged that the company failed to comply with Form I-9 employment eligibility verification requirements and continued to employ 15 workers despite knowing they were ineligible for employment. ICE levied multiple fines against the company.
The company sought to assert a “good faith defense” to the fines arguing that the company made a good faith effort to comply with its Form I-9 obligations by hiring the HR director. However, it was argued that the HR Director, in fact, exhibited “bad faith” by neglecting this duty to keep the company compliant.
The Ninth Circuit did not buy this “good faith defense” argument and found that the good faith defense does not apply in this instance, stating that this company wasn’t the first, and not likely the last, employer to expect its employees to comply with the law, only to be disappointed. The Court did not let the employer off the hook and found that since the HR director was the company’s agent, the company is liable for the director’s failure to perform his Form I-9 duties.
The court also noted that the “good faith defense” can only apply to technical or procedural violations of the act and not the substantive violations that were found in this case.
This case is a reminder as to the importance of correctly and timely completing the Form I-9.
(DLS Precision Fab LLC v. U.S. Immigration and Customs Enforcement, 2017 WL3378997 (9th Cir. 2017)).
What Should I Do Now?
- Start using the newly published Form I-9
- Follow the Form I-9 instructions to ensure the forms are completed correctly and timely.
- Review the Employers Handbook published by the USCIS for assistance
- Conduct an internal audit and review of your I-9 processes to ensure that you are fulfilling the legal obligations.