Warning! The Deceptively Complex Web of the I-9 Form

By Amber L. Blasingame, Partner, Messner Reeves LLP

“’Will you walk into my parlour?’ said the spider to the fly.” ~Mary Howitt

As of November 1, 2023, all employers must use the latest “shorten[ed]” version of the Form I-9 Employment Eligibility Verification, edition date August 1, 2023, promoted by US Citizenship and Immigration Services “to improve the customer experience.” https://www.uscis.gov/i-9. The latest version reduces Sections 1 and 2 to one page, again, but introduces Supplements A and B respectively for preparer/translator certification and reverifications. Further, the form instructions have been reduced from 15 pages to 8 pages by moving certain sections of the instructions to the Handbook for Employer M-274, which is now a whopping 141 pages printed. And in an effort to ease remote examination, the form can now be completed “on tablets and mobile devices,” but beware of the extra steps for Apple devices. https://www.uscis.gov/sites/default/files/document/fact-sheets/FormI9SummaryofChangesFactSheet.pdf. In short, the new I-9 Form may aesthetically appear more user friendly, but remains as complex and treacherous as a spider’s web.

Employers should be cautious of the deceptively simple appearance of the Form I-9 Employment Eligibility Verification. Just completing the form is fraught with traps and pitfalls for the unwary but the true complexity lies beyond the four-corners of the form itself. Many employers and employees tend to disregard the seemingly innocuous form completed upon hire. However, such thinking and handling of I-9 Forms, is costly for both the Employer and the Employee from paying thousands in directly applied fines for civil penalties, to criminal sanctions, to loss of workforce and back wages, and even loss of employment, criminal penalties, and possible immigration consequences for employees.

How can an Employer avoid or at least reduce some of these more costly and damaging repercussions? Routine Self-Audits, at least once, if not twice a year depending on the size of the employer. It is recommended that employers conduct the audits, at least initially, under the supervision of an experienced and licensed attorney who can follow-up the audit with proper training and maintenance advice.

The I-9 Form was created in 1986 under the Immigration Reform and Control Act of 1986 (IRCA). Requiring employers to verify employment authorization of employees was the “stick” to the “amnesty” “carrot” included in the same bill signed into law by President Reagan on November 6, 1986. The original form was even more deceptively simple than the present version. It consisted of two pages, a front which was completed by the employer and employee, and a back which included 3 columns listing acceptable evidence of identification and employment authorization, and was accompanied by a handbook, of approximately 10 pages in length. The form and the employer’s obligation to review acceptable documents to verify identity and employment authorization were only the tip of the iceberg. The law and regulations also included sanctions for employer’s who failed to comply or came up short in compliance that ranged from a civil slap on the wrist to penalties in the thousands even for administrative errors and even criminal penalties for recidivist behavior.

And just to make it even harder – the law was double-edged. Section 274A of the Immigration & Nationality Act (INA) requires that an Employer verify employment authorization eligibility for all employees hired on or after November 6, 1986, but Section 274B of the Act requires that an employer through this process of employment authorization and hiring in general not discriminate against individuals based on nationality or country of origin. The top of I-9 Form summarizes the “Anti-Discrimination” portion of the statute: “All employees can choose which acceptable documentation to present for Form I-9. Employers cannot ask employees for documentation to verify information in Section 1, or specify which acceptable documentation employees must present for Section 2 or Supplement B, Reverification and Rehire. Treating employees differently based on their citizenship, immigration status, or national origin may be illegal.”

Many employers may focus only on INA § 274A, and ignore the Anti-Discrimination warnings at the top of the form, by zealously completing the I-9 Forms and recording any and every document presented for review.  Because of course when you are trying to comply with the law, more is always better, right? Maybe, but not when it comes to I-9 Forms. Even if the employee offers more than the necessary documents, an employer who then records and copies all those documents for the posterity of the I-9 Form, could be slapped later with administrative penalties or worse, claims of discrimination in the hiring process. One of the most common mistakes seen when auditing I-9 Forms involves I-9 Forms completed by Lawful Permanent Residents and the Employer reviewed and recorded the unexpired Permanent Resident Card as well as an unrestricted State Driver’s License and an unannotated Social Security Card. A mistake, if repeated, that could cost an employer up to $1000.00 per Form. Some employers get caught up in thinking that they need to review and, therefore, record all the documents that will support the information provided in the entire form. So, if a Permanent Resident marks “Lawful Permanent Resident” and provides a USCIS A-Number (formerly an Alien Number), then the employer should have a copy of the document recording the USCIS A-Number. But the Permanent Resident Card doesn’t provide the Social Security Number which is requested in Section 1, so let’s record the Social Security Card for good measure. And since the employee also threw down the State Driver’s License, what the heck, we’ll record that as well. Welcome to the I-9 Trap!

But there is hope! A routine self-audit of I-9 Forms under the watchful eye of an experienced immigration attorney could help to save you thousands of dollars both in fines and frustration now and in the future. I-9 Forms may be corrected and re-verified to a certain extent after creation. And for what cannot be corrected in an audit, evidence of routine annual audits recorded with the I-9 Forms showing a good faith effort to comply may help to mitigate much of the remaining penalties an employer could face during a government audit.

In an era when ICE (US Immigration and Customs Enforcement) has announced intent to increase audits 400%, all employers need to use every tool in the box to mitigate their liability when it comes to employment verification eligibility. Because even if an audit does not reveal undocumented individuals on your payroll, an employer, just for administrative mistakes in creating and maintaining forms for a lawful workforce could still face thousands in penalties for clerical errors.