Newly hired employees must complete Form I-9, Employment Eligibility Verification, which requires them to provide certain documents showing their identity and that they are legally allowed to work in the United States.

To help prevent the influx of undocumented immigrants, employers in the United States are only allowed to employ workers who can prove their identity and their eligibility to work in the country.

A Little History

The Immigration Reform and Control Act was enacted in 1986 to legalize about three million undocumented immigrants while at the same time attempting to deter future undocumented immigration. Form I-9 was created to require newly hired workers to show eligibility to work in the U.S.

Originally, 29 forms were acceptable to establish a worker’s identity and eligibility to work in the U.S.; under a 1998 interim rule, this number was reduced to 14.

Sanctions on Employers

Employers who fail to comply with I-9 completion and retention rules can be penalized severely. Knowingly hiring and continuing to employ unauthorized workers can trigger fines ranging from $375 to $16,000 per employee, depending on the nature of the violation (e.g., failing to complete the form, participating in document fraud, and whether the violation is a first or subsequent offense.) Substantive violations, such as failing to produce a form for inspection by the Immigration and Customs Enforcement (ICE) range from $110 to $1,100.

In February 2015, a temporary staffing firm was hit with a $227,000 fine for falsely claiming it had verified work eligibility for 242 employees it hired. Despite signing Form I-9 under penalty of perjury that the information was correct, the firm had not looked at the actual documents (only photocopies).

However, technical violations of I-9 requirements won’t be penalized immediately (employers will be notified of the violations and given 10 business days to correct the errors). Technical violations include:

  • Failure of the employee to date the form at the time employment begins.
  • Failure to provide the date that employment begins.
  • Failure to date the employer section of the form within three business days of the date that employment begins.
  • Failure to provide the date of rehiring an employee in the section of the form used for rehiring.
  • Failure to indicate that an employee is under the age of 18.

An employer who can demonstrate good faith compliance has a rebuttable defense to any penalty that the government attempts to impose. Once this is done, it is up to the government to then show that the employer did not act in good faith. 

Form I-9 Misconceptions

When you’re hiring, firing or recruiting someone, employers cannot consider national origin and citizenship or immigration status; using this information in employment decisions is discriminatory. This means that an employer cannot use the I-9 form as a prerequisite to making an offer of employment because merely suspecting that someone may be ineligible and refraining from a job offer as a result can be discriminatory. The form is only completed once a person has been offered a job.

Form I-9 has not been replaced by E-Verify, an online method of quickly determining eligibility to work in the United States. Completing the Form I-9 for each newly hired employee is still mandatory, even if an employer voluntarily opts to use E-Verify.

The Bottom Line

Being an employer entails many responsibilities to the government. Properly completing, retaining and producing Form I-9 upon request is one of these obligations.