What you need to know about immigration law

Avoid these five commons immigration mistakes when hiring employees.

By Melissa Azallion Kenny

When a company wants to hire a new employee, it is important to follow the applicable federal and state immigration laws. All new hires are required to complete Form I-9 (Employment Eligibility Verification Form) at the time of hire. Form I-9 was created when the Immigration Reform and Control Act of 1986 (IRCA) was enacted and confirms an employee’s identity and eligibility to work in the United States. 

US employers must comply with IRCA and avoid errors on Form I-9, since a violation can result in hefty fines and penalties. Penalties assessed by Immigration and Customs Enforcement (ICE) for first-time violations for substantive and uncorrected I-9 errors range from $234 to $2,332 per violation, while penalties for knowingly hiring or continuing to employ an unauthorized worker range from $583 to $4,667 per violation. Subsequent audits can result in higher fines. ICE routinely conducts I-9 audits, and the number of ICE audits have significantly increased in recent years. 

To comply with the I-9 rules and minimize penalties, employers should aim to avoid these five common I-9 errors:

1. Proper and timely completion/retention. I-9 forms must be maintained for all employees hired on or after November 6, 1986. While employers have three days to complete Section 2 of Form I-9, employees must complete Section 1 on the first day of employment. I-9 forms must be kept for three years from the date of hire or one year from the date of termination, whichever is later.

2. Monitoring expiration dates. Employers may have to re-verify certain documents on or before the expiration date listed on Form I-9. However, some documents should not be re-verified. Doing so can result in fines by the U.S. Department of Justice on discrimination grounds. For example, employers do not need to re-verify US passports, Permanent Resident Cards (green cards) and/or any document in List B (i.e. driver’s license, school ID). 

3. Examining original documents. The employee must always present original documents for examination and verification in Section 2 by the employer. Photocopies of documents are not generally acceptable. Currently, there are special remote I-9 verification rules in light of COVID-19 but these do not apply to all employers. This temporary policy only applies to employers operating fully remotely and expired on May 31, 2021. 

4. Correcting errors. It is important to routinely conduct I-9 internal audits and make appropriate corrections. Be sure to not conceal any changes made on Form I-9 and follow an appropriate correction method. For example, the correction should clearly identify the error on the face of the original Form I-9, and the corrector should initial and date the correction. 

5. Use E-Verify. South Carolina immigration law requires employers to run an E-Verify query within three days of hire and maintain the results with the file. Only information listed on the I-9 Form should be used to run the E-Verify query. The South Carolina Department of Labor, Licensing and Regulation regularly conducts E-Verify audits to confirm employer compliance.

Conclusion. Immigration laws are constantly changing. With the number of ICE audits potentially on the rise under the Biden administration, it is important to complete and maintain I-9 Forms to minimize penalties and avoid fines. Good faith immigration compliance goes a long way in the event of an audit.

Melissa Azallion Kenny, Esq. is partner at Burr & Forman. For questions about immigration matters, reach her at makenny@burr.com or 843 785-2171.  



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