I-9 Compliance

Employer Sanctions and Employment Eligibility Verification I-9 Forms

Employer sanctions relate to a system of federal laws and regulations that prohibit employers from hiring or employing foreign nationals who are not authorized for employment in the United States. Employers are required to complete Employment Eligibility Verification Forms I-9 to verify their employees' identities and employment authorizations. Employers who violate these prohibitions, or fail to ensure that I-9 Forms are completed properly or at all for each employee, may be penalized.

What Are Employer Sanctions?

Employers will be sanctioned if they violate federal laws that prohibit employers from:

(1) hiring, in the United States, a foreign national whom the employer knows (through actual or constructive knowledge) is unauthorized for the employment; and

(2) continuing to employ, in the United States, a foreign national whom the employer learns (through actual or constructive knowledge) is unauthorized for the employment.

Employers who violate these prohibitions are penalized.

Penalties for Knowingly Hiring or Employing
an Unauthorized Foreign National

Civil Penalties

If the employer hired, or continued to employ, a foreign national who was not authorized for employment before March 15, 1999, it could be fined between $250 to $2,000 per foreign national for the first offense, from $2,000 to $5,000 per foreign national, for the second offense, and from $3,000 to $10,000 per foreign national for subsequent offenses.

If the employer hired, or continued to employ, a foreign national who was not authorized for employment on or after March 15, 1999, it could be fined between $275 to $2,200 per foreign national for the first offense, from $2,200 to $5,500 per foreign national, for the second offense, and from $3,300 to $11,000 per foreign national for subsequent offenses.

An "offense" is the number of times an employer has been charged with violations. For example, if an employer has twenty unauthorized employees on its payroll, it would have twenty violations, but this would be just one offense.

Debarment from Federal Contracts

Employers who knowingly hire or continue to employ foreign nationals not authorized for employment are barred from entering into federal contracts for one year. The debarment may be extended if the employer continues to violate the prohibition.

Criminal Penalties

Employers who engage in a "pattern or practice" of knowingly hiring or continuing to employ unauthorized foreign nationals may be prosecuted in criminal proceedings. In such cases, they can be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurred, imprisoned for more than six months for the entire pattern or practice, or both.

A "pattern or practice" of violations means the employer regularly and repeatedly hired or continued to employ foreign nationals despite knowing they were not authorized for such employment.

Penalties for Failing to Complete the I-9 Form
Properly or at All

The INS fines employers if it finds any errors in the employers I-9s. The INS considers a missing I-9 to also be an error; thus, if an employer fails to complete an I-9 for any employee, it will still be fined.

Fines are accrued per employee. If an employer makes five mistakes on each of its two hundred employee's I-9 Forms, and failed to complete I-9 Forms for four employees, it would receive 204 fines.

The size of the fine depends on when the error was made. Errors occurring before March 15, 1999, result in fines between $100 to $1,000 for each employee on whose I-9 an error was made. Errors occurring on or after March 15, 1999, result in fines between $110 to $1,100 for each employee on whose I-9 an error was made.

What is Authorized Employment?

Authorized employment is any employment that is (a) permitted under U.S. federal law, and (b) in accordance with the terms, duration and scope of the foreign national's immigrant or nonimmigrant status and employment authorization, if any.

What is Unauthorized Employment?

Another way of explaining this concept is by describing employment that is not authorized. Unauthorized employment is services or labor provided in the United States by a nonimmigrant foreign national:

(1) whose nonimmigrant status bars all employment; or

(2) whose nonimmigrant status only permits employment in a different position, or for a different employer.

Unauthorized employment probably also includes employment of a nonimmigrant foreign national whose nonimmigrant status requires the foreign national to obtain a specific Employment Authorization Document from the INS, and the foreign national has not yet applied for, or been issued, this document.

Guidelines for Completing I-9 Forms For Employees

Employment Eligibility Verification Forms I-9 ("I-9 Forms") must be completed for each employee, regardless of citizenship or national origin, as follows:

 Section 1 of the I-9 must be completed by no later than the day of hire.
 
 Section 2 of the I-9 must be completed by no later that the third day of business.
 
 Section 3 of the I-9 Form must be completed:
 
whenever an employee changes his or her name;

whenever an employee is re-hired within three years of the date the I-9 Form was originally executed; or

whenever the employee's employment authorization is about to expire, to show that he or she has ongoing employment authorization.

Employers may complete I-9 Forms for employees before the mandated deadlines, provided the forms are completed at the same point in the hiring process for everyone. Employers should not complete I-9s before an applicant accepts the job offer since the form requires sensitive information, such as citizenship status and marital status.

Employer must retain the following for each employee:

 the original I-9 form;
 
 photocopies of the documentation presented by the employee; and
 
 any I-9 forms previously used to re-verify employment authorization.
 
The Employer must retain this I-9 documentation for three years after the date of hire, or for one year after the date employment is terminated, whichever is later. Because I-9 forms contain sensitive biographic data that could potentially form the basis of a discrimination lawsuit (such as the employee's age, marital status, or national origin), the I-9s should be retained separate from all other personnel documentation.

For further information click here for I-9 Definitions.  If you would like a free evaluation of your particular circumstances click here or contact Dobbs & Neidle, PC to arrange a consultation with an attorney.