The recent increase in government audits has motivated many employers to ensure that they are I-9 compliant. However, many do not know what compliance actually entails.
ICE reduces I-9 compliance to 3 elements:
(1) Verify the identity and employment authorization documents of employees;
(2) Complete and retain each Form I-9; and
(3) Refrain from discriminating against individuals on the base of actual or perceived national origin, citizenship, or immigration status.
Even still, complicated federal anti-discrimination laws and vague guidelines surrounding these 3 elements make it difficult for many companies to remain compliant.
I-9 compliance is undoubtedly a double-edged sword for employers. On one hand, employers are required to physically examine and verify work authorization within 3 business days from each employee’s first day of employment. On the other hand, an employer representative cannot request or even recommend an appropriate work authorization document because of strict anti-discrimination laws.
This burden placed on employers can lead to criminal and civil penalties even where an employer did not have actual knowledge of its non-compliance. The Immigration and Nationality Act and case law allows for constructive knowledge (INA 274A(a)(2), U.S.C. 1324a(a)(2)), which is where the employer reasonably should have known that the hired individual lacked valid work authorization. To determine whether constructive knowledge exists, ICE considers the “totality of circumstances.”
Best practices for I-9 compliance include HR representatives being well-versed in the I-9 Handbook for Employers (M-274) and employers retaining legal counsel to provide guidance and clarification for everything from corporate I-9 policy to complicated employment eligibility verification cases, including remote hires.