Don't get hit with an I-9 fine

You don’t want to be in the position of the New York dentist who was fined more than $5,000 for failing to present proper I-9 forms for employees at his dental office.

Dr. Robert Schaus, of Clarence, N.Y., had argued that he did not need to retain the I-9 forms of current employees who had worked for the practice for more than three years. The Office of the Chief Administrative Hearing Officer rejected this defense as fundamentally “wrong as a matter of law.”

It’s a big mistake that small business owners often make when it comes to Form I-9 compliance, according to immigration attorney John Fay, who is vice president and general counsel at LawLogix.

Form I-9 is used for verifying the identity and employment authorization of individuals hired to work in the United States. U.S. law requires companies to employ only people who may legally work in the United States either U.S. citizens or foreign citizens who have the necessary approval.

The dentist thought that after three years he could throw away the forms, Fay says. “That’s not true. He tried to make the argument that the people have been here for a while and he shouldn’t be penalized, but the law is black and white. Retention of forms is a big problem. People destroy them right after three years. We see that a lot.”

Schaus originally was penalized $10,030, but the fine was later reduced to $5,400.

U.S. Immigration and Customs Enforcement (ICE) agents are now conducting I-9 audits more frequently and small employers tend to be disproportionally affected, Fay notes. “It’s more in the construction and retail industries, but there are a lot in health care.”

Small business owners run into lots of different kinds of trouble with I-9 compliance, according to Fay. “Many times, they use the wrong version of the form. Many times they don’t know how to review documents. The bane of employers is: How far can I go to verify that someone can work? You have to be careful not to discriminate. You can’t have a policy of hiring only U.S. citizens. It’s a delicate balance.”

Also, business owners sometimes confuse I-9 compliance with E-Verify, which is a free Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. “Sometimes they start doing E-Verify and don’t do the I-9 Form. It’s not either/or,” he says.

There are states, as well as some cities, that do require E-Verify for at least some public and/or private employers. To add to the confusion, California law has restrictions on the use of E-Verify.

Where can you go for help? The U.S. Citizenship and Immigration Services (USCIS) has published a handbook about how to complete the form and comply with the verification process. Electronic copies of English and Spanish versions of the I-9 Form are available at www.uscis.gov.

And the Department of Justice’s Civil Rights Division and ICE recently issued “Joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.”  The guidance document is intended to help you structure and implement your own internal audits so that they don’t run afoul of the employer sanctions and anti-discrimination provisions of the Immigration and Nationality Act.

You can download the document from the ICE website

or from the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) website (https://www.justice.gov/crt/file/798276/download).

Fay says the two agencies have come to recognize that an increase of internal I-9 audits in the past few years has increased the danger of making mistakes, particularly with respect to unlawful discrimination.

“We’ve seen this before during the new hire process an overly eager manager throws caution to the wind and decides to ask their new hire employees for every document under the sun, just to ‘cover all bases’ of course,” according to Fay. “During the past few years, the OSC has been steadily cracking down on employers who engage in this form of discrimination, and so it’s only natural that the agency would also take a keen interest in the I-9 correction process as well.”

The current version of Form I-9 expired March 31; however, USCIS has instructed employers to continue using this version of the form until a new revision is approved. The new version of the form, which Fay says is expected to be released later this year, “is designed for small employers and has automated error checking.”