The new I-9

Steve Cesare

With June now upon us, all landscapers should be well aware they must only use the revised I-9 form for all new hires and re-verifications. The revised I-9 form is two pages long, has an expiration date of March 31, 2016, comes with seven pages of instructions and can be downloaded at bit.ly/lli9form online. In tandem with the new I-9 form, the U.S. Citizenship and Immigration Services has updated its 65-page Handbook for Employers, Guidance for Completing form I-9.

Penalties. The I-9 form is the critical document in the rapidly-growing area of employer audits conducted by Immigration and Customs Enforcement (ICE). In 2012, there were 3,004 I-9 audits.

By way of comparison, only 500 audits were conducted in 2008. Faced with increased audits, landscapers must have their I-9 process well in order. Failure to do so can result in the following penalties:

• If an employer makes a mistake on any I-9 form, does not retain the I-9 forms for the proper length of time, or does not allow the government to review the I-9 forms when requested, the employer must pay a fine between $110 and $1,100 for each I-9 form violation.
   
• If ICE determines an employer has “knowingly” hired or continues to employ unauthorized aliens the employer must pay the following civil penalties:

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First Offense: Between $375 and $3,200 for each unauthorized alien;

­Second Offense: Between $3,200 and $6,500 for each unauthorized alien; or

­Subsequent Offenses: Between $4,300 and $16,000 for each unauthorized alien.

• If an investigation reveals that an employer has falsified any document associated with the I-9 form, the employer will be ordered to pay the following civil penalties:

First Offense: Between $375 and $3,200 for each fraudulent document; or

Subsequent Offenses: Between $3,200 and $6,500 for each fraudulent document.

Differences in the New I-9 form. While the new I-9 form is still organized into three sections, it contains the following differences from its predecessor.

Section 1: Employee Information and Attestation: This section now has optional fields for the employee to add his/her e-mail address and telephone number.

Second, an employee who checks the fourth attestation box and was issued an I-94 card, must now list the foreign passport number and country of issuance.

Third, the date field is more salient to the employee, thereby preventing the common error of omitting this field on the previous I-9 form.

Section 2: Employer Review and Verification: This section requires employers list the employee’s full name at the top of Page 2. Also, there is now space for a third List A document for those occasions related to J-1 visa holders or F-1 students completing Optional Practical Training, rather than only two found in the earlier version.

Section 3: Re-verification & Rehires: This section clarifies that List B documents do not require re-verification. The new form also adds a field for the employer to print his/her name.

Key Points.

• All current employees do not have to complete the new I-9 form. Only those current employees who do not have an accurate I-9 form on file, or need re-verification must complete the new form.
• All employees hired after Nov. 6, 1986, must have an accurate I-9 form on file.
• Newly-hired employees must complete Section 1 no later than the first day of employment.
• • Employees working with companies participating in the E-verify system must provide their Social Security number in Section 1.
• Section 1 must not be completed before an employee has accepted a conditional job offer.
• Employers must complete Section 2 within three days of the employee’s first day of employment (e.g., if the employee begins work on Monday, Section 2 must be completed by Thursday).
• Employers cannot specify which documents they will accept from an employee.
• Employers are not required to photocopy the documents presented.
• Employers should contact an employment lawyer or human resources professional to conduct an annual I-9 audit.
• I-9 forms must be retained for either (a) three years post-hire date or (b) one year post-termination date, whichever is later.
• I-9 forms must not be stored in an employee’s personnel file.

Summary. To remain legally compliant, landscapers should adopt the points mentioned above, begin using the new I-9 form immediately, and establish a straightforward process for ensuring accurate distribution, completion, and record keeping.

Steve Cesare is an industrial psychologist with the Harvest Group, a landscape consulting group. Send your HR questions to scesare@giemedia.com.