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19 Jul 2019

Brush Up Your Legal Lingo: An Update on I-9s and E-Verify


Scott Zucker

Founding Partner

Form I-9 is used to verify the identity of individuals hired or employed in the United States.

Under the U.S. Immigration Reform Act, all U.S. employers must have a valid and complete Form I-9 for each of their employees, whether a citizen or a non-citizen.

Under the form, the employee must attest to their identity and provide proof of their identity. The documentation needed to prove identity can vary. There is a list of acceptable documents on the I-9 Form. An employer cannot limit what they will accept as proof of identification from their employee. Employees must complete their I-9 Form no later than their first day of work. Employers must complete their part of the Form no later than the employee's third day of work. Employers must retain all I-9 Forms until the later of:

  1. three years after the employee began work or;
  2. One year after the employee was terminated. The documents can be stored electronically and need not be kept in the original format.

An employer can be found to have violated immigration laws if they fail to verify the identity and eligibility of a new employee through the use of an I-9 Form.

Fines for violations, depending on the number of employees involved, can range into the tens of thousands of dollars, especially for those who knowingly fail to obtain the forms as required. Criminal prosecution is also possible for repeat and flagrant offenders. ICE (Immigration and Customs Enforcement) can consider its penalties based on the size of the business, the good faith effort to comply, the seriousness of the violation, whether the violation involved undocumented workers and the history of previous violations.

E-Verify was created to allow employers to get instantaneous results for their employment verification searches.

It is an internet-based system that allows employers to match information provided by employees on their I-9 Forms to records held by the Social Security Administration and the Department of Homeland Security. In the beginning, E-Verify only impacted Government employees, but it has expanded over the years to include private employers (initially only those with a large number of employees). Many states, such as Alabama, Arizona, Mississippi, South Carolina, Georgia and Tennessee, now require E-Verify for both public and private employers. The laws provide that failure to comply may subject an employer to civil penalties as well as the revocation of their business license.

There is a difference between an ICE I-9 audit and an ICE visit with a warrant.

An ICE audit requires the presentation of a Notice of Inspection. In response to this, an employer has three business days to provide the documents that have been requested. An ICE warrant typically permits ICE officers to enter the workplace premises, often times with the expectation to arrest undocumented workers.

Documentation of employees hired or working for your business may be viewed as a simple paperwork headache, but over the last few years, especially with the focus on immigration issues in the United States, ICE has increased its enforcement efforts, leaving many businesses with significant fines for failing to maintain the proper records. All businesses should take the time to perform a self-audit of their employment records to insure that all employees have provided the required forms.

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