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Bloomfield Office
Three Regency Drive
Bloomfield, CT 06002
Phone: (860) 242-2221
Fax: (860) 286-0185New Haven Office
1164 Townsend Avenue
2nd Floor
New Haven, CT 06512
Phone: (203) 468-4770
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EMPLOYER COMPLIANCE WITH I-9's 04-03-2008 The United States Government via the Department of Homeland Security is starting to reuse the tools that were available to it based under the Immigration Reform Act of 1986, to enforce the Immigration Law. The key weapon is Form I-9, Employment Eligibility Verification (revised 6/5/07).* It is strongly suggested that employers review all I-9’s for each of their employees. All employers must complete a Form I-9 for all persons hired after November 6, 1986, to include citizens of the United States. As an employer you are responsible for insuring that the employee completes Section 1, Employee Information and Verification, in which the employee attests to his/her lawful right to work in the United States. The employer is required to complete Section 2, Employer Review and Verification, where the employer lists the types of documents that the employer has inspected to verify that the employee is authorized to work in the United States. Section 3 provides an updating and re-verification section for documents that had expiration dates. The back of the Form I-9 lists those documents which are acceptable. The employer completes Form I-9 under the “Chinese restaurant” theory of completion which is one from list A or one from list B and one from list C. No substitutions allowed. It is further suggested that employers maintain an I-9 folder kept apart from the personnel files of the individual aliens. Once the employer reviews the documents presented, it is suggested that the employer make a copy of the documents that were reviewed and place a copy in the I-9 folder. The employer is not a required to be a document expert. As long as a document appears to be genuine and relates to the employee, the employer’s obligation has been met. What if an employer has inadvertently or consciously decided that he/she would not comply with the law? There are civil penalties for non–compliance. An employer who fails to properly complete, retain and/or to make available for inspection Form I-9 as required by law may face a civil money penalty of not less than $110 and not more than $1,100 for each employee for which a Form I-9 was not properly completed, retained or made available. These are civil penalties for record-keeping violations only. There are more severe penalties for hiring unauthorized aliens. CIVIL FINES With respect to employees hired after November 6, 1986, if you hire or continue to employ unauthorized aliens, you may be ordered to cease and desist such activity and to pay a civil monetary penalty. These penalties are as follows: First Offense: Not less than $375 and not more than $3,200 for each unauthorized alien. Second Offense: Not less than $3,200 and not more than $6,500 for each unauthorized alien. Subsequent Offenses: Not less than $4,300 and not more than $16,000 for each unauthorized alien. CRIMINAL FINES Persons or entities who are convicted of engaging in a pattern of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are unauthorized to work in the United States after November 6, 1986, may face fines of up to $3,000 per employee and/or six months imprisonment. Please note that you can be fined for failure to complete, retain and/or make available Form I-9 and you can also be fined for hiring the unauthorized alien for whom you did not complete Form I-9. Upon three days notice, officers of the Department of Homeland Security and officers of the Department of Labor have the right to review your Form I-9’s for compliance. Caveat: There can be violations for unlawful discrimination in preparing I-9’s. If you are overzealous you can receive fines as your overzealousness may be considered to rise to the level of unlawful discrimination. Immigration Act of 1990 (IMMACT 1990) has added additional provisions which were not part of the 1986 law. There is now an anti-discrimination provision which relates directly to the completing of Form I-9. §274B(a)(6) INA (8 U.S.C. 1324b(a)(6)) states, “For the purpose of satisfying the employment eligibility verification requirements, an employer shall not request that the employee present more or different documents than are required. Also, an employer cannot refuse to honor documents which on their face reasonably appear to be genuine and relate to the person presenting them.” For violating this new anti-discrimination provision, there is a parallel civil fine of not less than $375 and not more than $3,200 for each individual discriminated against. *Both the revised form and the “Handbook for Employers Instructions Completing the Form I-9” are available on line at www.uscis.gov. Employers need only complete the 2007 Form I-9 for new employees. Employers do not need to complete new forms for existing employees. However, employers must use the 2007 Form I-9 when their employees require re-verification.For more information, please contact Attorney Jason Y. Gans.
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