Understanding I-9s and IRCA Compliance

The Immigration Reform and Control Act ("IRCA") requires all U.S. employers to verify the identity and work authorization of every employee hired after November 1986.  By properly completing the Form I-9, Employment Eligibility Verification, on or before the first day of starting to work, the employee attests to his or her identity and work authorization status.  In addition, within three days of starting work, the employee presents documentation of his or choosing to evidence the information presented, and the employer attests that the documentation has been examined and found to be genuine and related to the employee, and that the employee is, to the best of his or her knowledge, eligible to work in the United States.
In addition to federal requirements under IRCA, several states also require certain employers to comply with state-specific employment authorization verification requirements, including verifying the work authorization of all new hires using the Basic Pilot Program and/or attestations.  Some of these state laws also impose penalties for the knowing or intentional employment of unauthorized workers. 
While IRCA compliance may appear to entail the mere completion of a simple, one-page government form (i.e., the I-9), in fact it represents a series of complex transactions that, unless performed with precision, expose companies to significant risk and liability. Paperwork violations alone can result in civil penalties of $1,100 for each individual for whom verification was improperly completed or omitted. Employers that entirely ignore the I-9 process could be subject to pattern or practice liability, which might result in a fine of up to $10,000 and/or a six-month prison sentence. 
Challenges in I-9 Program Management

Some of the most difficult challenges in I-9 program management include:
  • Establishing and maintaining visibility over I-9 compliance on a company-wide basis
  • Keeping company representatives trained on how to efficiently and correctly process I-9s
  • Making sure there is an I-9 on file for every employee who is required to complete one, and that the forms are easily accessible in the event of an audit
  • Anticipating new hire start dates and having each new employee complete his/her part of the I-9 on or before the date of hire, with the company completing the rest of the I-9 within the first three days of employment
  • Processing I-9s for remote employees
  • Determining whether the documents that employees present are acceptable
  • Avoiding over-documentation
  • Identifying and tracking forms that need to be updated or re-verified in the future
  • Monitoring and timely purging of forms for terminated employees
I-9s Online
Recent Department of Homeland Security regulations for digital handling of I-9 forms now make it possible for employers to adopt electronic tools that fully automate the completion, signature and storage of I-9 forms. This development gives permission for electronic processing, but it also raises the bar for employers, who will now increasingly be expected to maintain I-9 records with a high degree of accuracy and efficiency. At the same time, in a post-9/11 environment focusing on the security implications of illegal workers, the government is also increasing its attention to worksite enforcement and the importance of proper completion and storage of I-9 forms. Given these trends, it is more important than ever for companies to make sure that their I-9 forms are completed efficiently and correctly, and that they are readily accessible in the event of an audit.  In addition, employers in certain states will need to prepare for compliance with additional requirements, potentially including verification via the E-Verify Program.