Today’s story will be of special interest to employers, large or small, and we begin with a question: Are your Forms I-9 in order? Are you thinking, “What is a Form I-9?”
We will tell you all about it in a moment, but first, how would you like to be in Sidhu’s shoes?
“Mr. Beaver,” a highly nervous voice on the phone with a British accent, began, “My name is Sidhu. I live in London, and a few days ago, I came here to a farm in Central California that my brother manages for other relatives. This was at his urgent request as he had to attend to matters in the old country.
“I am a dentist and do not know a thing about farming or dealing with his employees, but suspect that my brother is in real trouble,” Sidhu continued.
Why was that? We wondered.
“Well,” he replied, “Just as I came to the farm office, a man wearing a U.S. Government ICE uniform walked in and explained he was here last week and gave my brother a Form I-9 Notice of Inspection, which asked for employee payroll records, all kinds of things.
“He was very sympathetic, and gave me a copy, stating he would return in 3 days for the information. That was two days ago. I can’t find my brother! I looked everywhere and none of those records he wants are in the office.
“Is my brother in trouble? Am I in trouble? What should I do?”
Something All Employers Must Know About
When we ran Sidhu’s plight by McLean, Virginia-based Immigration attorney Nataliya Dominguez, her response was, “He needs to call an Immigration attorney at once.” She specializes in Immigration Law and recently conducted a seminar on this topic for The Knowledge Group.
Dominguez outlined just what this Form I-9 is all about.
“Form I-9 is the employment eligibility verification document used to confirm an employee’s identity and U.S. work authorization. It helps employers answer the question, ‘Can I hire this person? Do they have adequate documentation proving their right to work in the United States?’
“Available at www.uscis.gov, it is required by the U.S. Citizenship and Immigration Services for employees hired after November 6, 1986, and is applicable to nearly all employees, including U.S. citizens.
“Immigration lawyers know that some smaller and mid-size employers may not have heard of the Form I-9. Large companies, with robust human resources departments, are generally more likely to be familiar with it.”
Not Simple To Fill Out — Significant Penalties For Errors
“This is not a simple form to fill out,” Dominguez cautions, adding, “and it is easy to make a mistake which could be costly. Where small, technical errors are discovered—such as typos—the employer has10 business days to correct them.
“But, in the case of substantive violations—which prevent a reasonable person looking at the form from determining the employee can legally work in the United States—an employer could face thousands of dollars in fines, as well as possible criminal sanctions if a pattern or practice of knowingly hiring or continuing to employ undocumented workers is found.”
What Do I do With the Form I-9?
As we learned, the Form I-9 isn’t something that you file with the government. Instead, for active, current employees, it must be kept by the employer. For terminated employees, it must be retained either one year from the date of termination or three years from the date of hire, whichever is later.
“ICE conducts random reviews of employers’ Form I-9 records, and certain industries with a higher likelihood of hiring undocumented laborers are more likely to be investigated, such as: construction, food service, hospitality, and agriculture, to name a few.”
And When the Ice Agent Shows Up?
We asked Dominguez to explain what happens when an ICE agent shows up for a Form I-9 audit. She set out these main points:
(1) When an ICE agent appears at an employer’s location and serves a Notice of Inspection, the employer generally has 72 hours to provide the documents requested.
(2 The Notice of Inspection lists the documents requested, generally Form I-9 records, supporting documents, payroll records, corporate information, and business ownership details.
(3) As Form I-9 audits can become very complex and potentially very costly for the employer, an immigration lawyer should be contacted immediately.
And does she feel that, given recent events, there will be more enforcement?
“Yes. In the opinion of many Immigration lawyers, there will be a real push to safeguard American workers and their jobs. As a result, there will be an enhanced effort to identify undocumented workers and ensure that employers are properly verifying all workers’ U.S. employment eligibility.”
Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@Gmail.com. Also, visit dennisbeaver.com.