As an employer, you’re required to comply with various rules and regulations. One of those rules is ensuring that you have completed Form I-9s for all employees. Let’s answer some basic questions that you will give you some more insight into the form and the purpose behind it.
What is the Purpose of Form I-9?
The I-9 form is intended to protect the employer from unintentionally hiring undocumented workers.
Form I-9 Employment Eligibility Verification was created in 1986 as part of the Immigration Reform and Control act (IRCA), a federal law that outlaws hiring undocumented immigrants by imposing hefty penalties, and sometimes prison time for employers who knowingly hire undocumented workers.
By law, U.S. employers are only allowed to employ workers who can prove their identity and qualifications to work in the United States. This includes U. S. citizens, noncitizen nationals, lawful permanent residents, and resident aliens who are authorized to work
Are all employers required to complete an I-9?
The short answer is “Yes”. No matter how small your company is, you must comply with Form I-9 requirements.
You must complete and retain a Form I-9 for every employee you hire for employment regardless of citizenship or nationality.
There are exceptions to this requirement:
Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times.
Individuals providing labor who are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).
Interns do not complete an I-9 unless they are paid. Unpaid interns, student trainees, and volunteers are not required to complete an I-9.
When can you ask an individual to complete the I-9?
You cannot ask a prospect employee to complete an I-9 until after they have been offered a job.
Never ask an applicant to complete an I-9 before you make a job offer. (see notes below).
A couple of notes:
To avoid discrimination, you can’t consider national origin, citizenship, or immigration status when making a job offer.
The I-9 form can’t be used as a condition of an offer of employment. Therefore, suspecting a prospective new hire could be ineligible and not making a job offer would be discriminatory.
Do I need to ask my independent contractors to complete an I-9?
The short answer is “No”. It is only required for those individuals that are deemed to be “employees.”
The Form I-9 regulations use common-law understandings of employer-employee relationships to describe who is an independent contractor.
However, if an employer knows the independent contractor is working illegally or hiring illegal aliens, then the employer is obligated not to use the independent contractor’s services. Further, If an employer knowingly contracts or does business with undocumented independent contractors they may face penalties from the government.
How Long Should I Keep Form I- Records?
Keep the I-9 form for as long as the employee works for you. (Additionally, under Florida law, you must keep copies of the verification documents used to complete the I-9 for three years after the employment date).
If they are no longer working for you, then you should keep the I-9s and verification documents for at least three years after their hire date.
If they worked longer than three years, keep the I-9, and verification documents for at least a year after their termination date.
Once the employee no longer works with you, set a reminder date for when the I-9 should be destroyed.
What Happens When Employers Don’t Verify Work Eligibility with Form I-9?
Employers who don’t have their new hires complete the I-9 and don’t verify their work documents face fines based on the severity of the situation. Employers who knowingly hire and continue to employ unauthorized workers can be penalized with fines ranging from $573 to $20,130 per employee, depending on the severity of the infraction.
Other violations, such as failing to produce a Form I-9 for inspection by Immigration and Customs Enforcement (ICE), range from $230 to $2,292.
Can my failure to get an I-9 impact my Workers’ Compensation Costs?
The short answer is “Yes”. Besides expensive fines, if your company is inspected or audited by ICE, not complying with Form I-9 requirement can impact your workers’ compensation policy.
The Florida workers' comp statute defines an employee as one who receives remuneration for work "whether lawfully or unlawfully employed and includes, but is not limited to, aliens and minors." (Fla. Stat. 440.02.).
Courts in Florida have interpreted this statute to hold employers responsible when they knowingly hire undocumented aliens.
This means that if your undocumented worker is injured, they can be found to be eligible for workers’ compensation benefits.
Suppose the injured, undocumented employee is deported or leaves the country. In that case, a very complicated and expensive claim will result. (Just because they move away, that does not relieve the workers’ compensation carrier from paying medical and indemnity benefits.
Typically, the insurance company chooses the doctor the injured worker will see, which helps to keep costs down. Without this safeguard in another country, medical expenses can skyrocket.
As a result of this expensive claim, your workers’ compensation costs can include:
Higher premium
Claims administration expenses
Indemnity payments
Disability settlements for the injured or sick worker.
Summary
Understanding the purpose of Form I-9 and storage requirements are part of the responsibilities of business ownership.
Employers who either hire and continue to employ workers they know are unauthorized or who fail to produce a Form I-9 for inspection by immigration officers face substantial fines.
Additionally, your company may face higher workers’ compensation insurance premiums if the undocumented worker is injured.