Rommel Dumlao

How California Employers Ensure Compliance with Form I-9 Requirements? Dr. Monroe runs a dental practice in Beverly Hills. Because of the growing number of customers, she decided to hire two assistants from Mexico to help her. One day, officials from the law enforcement agency Immigration and Customs Enforcement (ICE) visited her office and inspected her records. When the officials asked her to show the Form I-9 of her staff, she failed to present them because she could not locate the documents in their record files. She explained her predicament to the officials, but they decided to conduct a further investigation on her practice. Is she guilty of violating a law in the state of California or a federal law in the US? In the US, particularly in the state of California, businesses are mandated to comply with various regulations in order to conduct their operations smoothly. One of these requirements is the keeping of an appropriately filled up Form I-9 of each worker employed by the business or company. The keeping of the properly filled up Form I-9 in the business or company premises is mandated by the Immigration Reform and Control Act of 1986. This law was enacted to stop the hiring of undocumented workers like illegal immigrants and documented foreign nationals with no work visas in the US. Under the law, employers should require their new workers to correctly fill up Form I-9 to verify both their identity and their work eligibility to perform labor or services in the country in exchange for wages. The employers are also responsible to assess and record the identity and employment eligibility document(s) of their workers to make sure that they are genuine and related to their employees. Things Employers Should Do to Avoid an ICE Audit or Prosecution Under the Act Independent Contractors To avoid a stressful investigation like our case above or a possible prosecution by the ICE, employers should ensure that all their employees, as well as independent contractors, are properly documented. Employers are not required to complete form I-9 for independent contractors, but they should also make sure not to misclassify a worker as an independent contractor. An independent contractor is defined as an individual or company that provides a service or work as and when required by an employer. Here are some things that employers should do with respect to their independent contractors: 1. Post or display an explicit policy prohibiting the employment of undocumented workers in strategic areas at every work site. 2. Require all subcontractors to verify the employment eligibility of their employees and to sign off on a written policy prohibiting the hiring and retention of undocumented workers. 3. Check the employment eligibility of all independent contractors and subcontractors. 4. Conduct an audit to make sure that a company and its executives are not aware of any violations. Form 1-9 Compliance Here are the things that employers and employees should do to ensure form I-9 compliance: 1. Employers should ensure that the form is correctly completed within three business days after an employee is hired. 2. The employee should fill up the form indicating his name, address, age, and legal status (e.g. resident alien or alien with a temporary work permit), choose from a list of acceptable documents that he/she will present to his/her employer to verify his/her identity and work eligibility, and sign the form under penalty of perjury. 3. The employer should evaluate the form submitted by an employee and complete the Section 2 of the form. Under the section, the employer should list the employee’s identity and work eligibility document titles, the issuing authority, the document numbers, and expiration dates, if any. 4. The employer should sign under penalty of perjury that he/she carefully reviewed the form and attest to the eligibility of the employee to work in the US. Common Errors in Filling-Up Form I-9 Here are some of the most common mistakes in filling up the form that both employees and employers should be aware of: Failure to indicate the start date of the employee. Failure by the prospective employee to properly state his/her Citizenship status in Section 1 of the form. Failure by the employee to properly sign and date the form. Failure by the employer to complete the form by the third day of the employee’s employment. Things that Employers Should Do When Hiring Employees From Other Places Here are some things that employers should do if their prospective worker is not a resident of the area: 1. Asks the prospective employee to let his/her Form I-9 and “original” documents to be certified by a licensed Notary Public. The employee should fax a copy of the documents and mail the original. 2. Keep the I-9 Form and the photocopies of the identification documents of an employee in a separate file for a period of three years after the date of hiring, or one year from the date of termination, whichever is later. 3. Present all I-9 Forms and associated documentation within three business days if requested by an ICE I-9 compliance audit and a Department of Labor wage and hour audit. Civil Fines and Criminal Penalties for Form I-9 Noncompliance Here are some civil and criminal penalties that could be meted to employers for Form I-9 noncompliance: 1. Fines of up to $1,100 for each paperwork violations like failure to properly complete and keep the form on separate file. 2, Fines of up to $6,500 if the employer knowingly participated in acts relating to document fraud. 3. Fines of up to $16,000 for knowingly hiring unauthorized workers and for unfair practices under the Immigration and Nationality Act (INA). 4. Imprisonment of up to 10 years for criminal offenses. 5. Forfeiture of unlawfully-obtained assets and profits. 6. Treble damages in a Racketeer Influenced and Corrupt Organization (RICO) lawsuits filed by competitors. If a Notice of Intent to Fine is received by an employer from the ICE, the employer may request a hearing before an administrative law judge within 30 days. Failure to do so will compel the ICE to issue a Final Order for the penalty. Conclusion: Employers should ensure proper compliance with the requirements of the law to avoid costly penalties or business closures. They are also advised to seek the assistance of a competent lawyer within their jurisdiction to make sure that all their documentation are free of error and properly filed with the appropriate government agencies.