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Significant Increases for Form I-9 Penalties on the Way

The routine process of filling out an I-9 form when hiring a new worker could soon become costly for unwary employers. Starting August 1, 2016, penalties for I-9 paperwork violations will nearly double. The increased penalties were spurred by a new law which required federal agencies to increase the level of civil monetary penalties they issue to adjust for inflation. (See, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015)

In accordance with the Act, the minimum penalty amount for I-9 errors will increase from $110 to $216 PER VIOLATION. The maximum penalty will similarly increase from $1,100 to $2,156 PER VIOLATION. The new penalty levels apply to violations occurring after November 2, 2015 – the date the Act became effective. Employers whose I-9 forms were audited since November 2015 may be required to pay the increased fines for any violations found during those audits if the penalties have not yet been assessed.

To minimize concerns about costly penalties, employers should conduct internal I-9 audits regularly and implement a strong I-9 form policy. Here are some tips for employers to consider when doing so:

      • Ensure the I-9 is filled out within three days of the employee’s start date. If an employer discovers an I-9 is missing or was never completed, a new I-9 form should be completed as soon as possible.
      • Have the employee fill out all portions of Section 1, including signature and date line. Employers cannot fill out or correct errors in Section 1 of the form. If an employer discovers an error or omission in Section 1, the employer should ask the employee to correct the error by drawing a line through the incorrect information, entering the correct information and initialing/dating the correction.
      • Do not specify what documents the employee may present to fulfill their identity or employment authorization; the employee can choose which documents they would like to present. When inspecting the employee’s documents, an employer only has a duty to inspect the document to ensure it reasonably appears to be genuine. If an employer rejects a document, it should allow the employee to present other documentation.
      • Do not conceal changes in Sections 2 or 3 of the I-9 by erasing the text or using correction fluid. If an employer needs to correct a mistake in Sections 2 or 3 of the I-9 form, it should draw a line through the incorrect information, enter the correct or omitted information, and then initial/date the correction.
      • Remember an employer’s duty extends not only to making sure the I-9 form for each employee is properly completed, but continues for those employees whose employment authorization may expire during their employment. An employer must re-verify no later than the date the employment authorization expires. Importantly, U.S. citizens and noncitizen nationals never require reverification.

Employers must have I-9 forms on file for all employees and keep them for at least three years after date of hire, or one year after his/her employment ends, whichever is later. Because records must be kept for such a long period of time, mistakes made long ago can reappear and cause problems. It is therefore important now more than ever to conduct these internal audits and ensure accurate records are being kept.

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