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What You Don't Know About Employment Eligibility Verification May Cost You

Immigration Law Update

May 24, 2010

The federal government requires all employers to verify the employment eligibility of all new employees within three business days of the hire by completing and retaining  Form I-9. Employees must complete the form within 24 hours of hire. The forms can be confusing and difficult to complete, and employers often make mistakes that cost their companies thousands of dollars in penalties and sanctions, and even criminal prosecution. Federal immigration officials or the Department of Homeland Security (DHS) may ask a company to produce accurate I-9 records and failure to do so constitutes a violation. Employers are relieved from liability only for certain minor, unintentional I-9 document omissions. It is the scope of that protection that has many employers seeking advice and tips on how they can ensure continued compliance. The answer lies in the distinction between what is substantive versus technical or procedural violation. A relief from liability is available only when the violation is deemed technical or procedural and is corrected within ten days of receiving notice.

What is a "Substantive Violation?"

Here is an example, based on a recent decision by the Justice Department's Office of the Chief Administrative Hearing Officer (OCAHO).

  • The Department found that failure to complete Section 2 of the I-9 within three business days of hiring is a substantive violation, not procedural or technical violation. 
  • Failure to sign the certification within three business days was also deemed a substantive violation.
  • Failure to identify proper List A, B or C documents (those used to establish identity, employment eligibility, or both) including titles, ID numbers and expiration dates, or attach copies, is a substantive violation.

The employer was unsuccessful in arguing that its failure to sign and date the I-9 forms was a technical or procedural failure and was penalized for each individual deficiency.

How Much Can Non-compliance Cost Me?

Civil money penalties with respect to each document deficiency for each I-9 range from $110 to $1,100. Here are the factors used to determine the penalty:

  • The size of the business of the employer;
  • The good faith of the employer;
  • The seriousness of the violation(s);
  • Whether or not the individuals involved were unauthorized aliens; and 
  • Any history of previous violations by the employer.

The statute does not require that equal weight be given to each factor, and it does not rule out consideration of additional factors.

What is the Answer?

Schedule periodic I-9 compliance audits. This may protect employers from liability and eliminate substantive violations.

Please click here for a list of violations that trigger employer liability.