I-9 Form and E-Verify: What Arizona Employers Need to Know

John Komadina

3 years ago

E-Verify? I-9s? Are you, an Arizona-based employer, confused about your obligations under the law? You’re likely not alone. As the immigration debate rages across the country, many employers find it difficult to sort out what their actual immigration-related legal obligations are instead of what they might be under immigration proposals circulated by politicians and the press.

However, despite the headlines, the bedrock of your immigration-related legal obligations lies in the federal Immigration Reform and Control Act (IRCA). Passed in 1986, IRCA established an employer’s responsibility to ensure the workers they hire are legally authorized to work in the U.S., as well as a mechanism — the I-9 form — for doing so.

The I-9 Form

A three-section form that all U.S. workers must complete, the I-9 form is used to verify a worker’s identity and ensure they are authorized to work in the United States. The I-9 form itself includes detailed instructions that employers should offer to employees and use themselves to make sure that it is completed correctly.

Section 1

In Section 1 of the I-9, employees must share basic biographical information, including:

• Full legal name
• Address
• Date of birth
• Citizenship or immigration status

If the employee is a permanent resident or an alien authorized to work, they must also include their Alien Number/USCIS Number, Form I-94 admission number, or foreign passport number, along with expiration date.

There are also optional fields for an employee to enter their email address, social security number, and telephone number. The social security number field is only optional for employers who do not participate in E-Verify. However, by law all Arizona employers must participate in E-Verify, so the employee must enter their social security number here.

Employees are also asked to verify they are eligible to work in the U.S. and must sign the form to attest that they are. And if a preparer or translator helped the employee complete the form, the preparer/translator must provide their name and address, as well as sign and date the form in the “Preparer and/or Translator Certification” area in this section.

When an employee returns the completed Section 1, they must also present physical copies of documents that prove their identity and eligibility to work legally in the U.S. The I-9 form includes a list of acceptable documentation from which they can choose. You cannot tell them which items from the list to present, as long as they show you the right number and type of documents laid out on the instructions on the form itself.

You should have them complete this section as they accept your employment offer. If they do not, they must complete it by the end of their first day of work, at the very latest.

Section 2

As the employer, you must complete Sections 2 and 3.  In Section 2, you must list:

• The workers’ documents used to prove their identity
• The date you examined the documents
• Your name, if you’re completing the form, or else the name of your authorized representative completing the form.
• The employee’s name and citizenship status as listed in Section 1
• The employee’s start date
• Your business address, though if you have multiple locations, enter the location at which the employee will be working.

You or your authorized representative will also have to sign an attestation statement to certify that the documents were examined and that you or they believe them to be genuine. Section 2 must be completed by the end of the employee’s third day of work.

Section 3

Section 3 is for employers to re-certify the identity and work eligibility of former workers who have been rehired within three years from their initial separation (though employers can complete a new I-9 for employees to re-verify their identity if they choose).

To use Section 3 to re-certify a past hire, you’ll need to re-examine their documentation, and complete the same information required in Section 2 in Section 3, along with a new certifying signature.

Common Errors and Red Flags

To comply with IRCA, you must keep an I-9 on file for every active employee which should be placed in a separate file along with copies of their identification and work authorization documents. You must also keep I-9s on file for terminated employees for the longer of either three years from their initial date of hire or one year after their termination.

Compliance goes beyond completed I-9 forms. Your company can face stiff fines and penalties if the government determines that you’ve hired unauthorized workers. You should flag any suspicious activity, such as documentation with missing, incomplete, or outdated information. Examples include:

• Missing signatures and/or dates on social security cards, drivers licenses, or Employment Authorization Documents (EADs)
• Expired documents
• Social security cards with the restriction “NOT VALID FOR EMPLOYMENT.”
• Typos, crooked lettering, or inconsistent fonts on official documents
• Social security numbers, foreign passport numbers, and similar identifying numerical identifiers with the wrong number of digits

Also, the submission of Spanish language I-9 forms should be flagged, as Spanish versions of the forms can only be completed in Puerto Rico.

While you’re not expected to be a document expert, you are to make a reasonable effort to assess the authenticity of the documents you review. If an employee does present you with expired or inauthentic documents, check with your counsel before taking any action.

E-Verify

E-Verify is an online government database you can use to determine worker employment eligibility. Some states, like Arizona, have mandated its use by employers through statute. Arizona’s mandate is enshrined in the Legal Arizona Workers Act, which prohibits businesses from knowingly hiring an “unauthorized alien,” and allows Arizona’s County Attorneys to file a civil suit to suspend or revoke an employer’s business license for doing so.

If you’re found guilty, you must terminate all workers who are ineligible to work legally in the U.S., and, as per the law, your business license will be suspended for a minimum of ten days. However, if you’re found guilty of a second offense, your business license may be suspended permanently.

Penalties for Non-Compliance 

The Immigration and Customs Enforcement (ICE) conducts periodic random audits of employer’s I-9 records to assess IRCA compliance. ICE may also follow up on citizen tips, or referrals from other law enforcement agencies.

If you are to be audited, ICE will serve you with a Notice of Inspection (NOI), which gives you three business days to pull together your employees’ I-9 forms. If there are technical errors on your I-9s, such as use of the Spanish version of the I-9 or missing:

• Signatures, dates, and attestation in any section
• Biographical information or alien number from the employee in Section 1
• Employer information or documentation lists in Section 2

You have ten business days to correct them or provide a reasonable written explanation to ICE as to why you cannot.

Failing to do either means that your technical violation will become a substantive violation, and you will be fined for each violation on your I-9 forms. Fines start at $230 for each error and can be as much as $2,292 per violation, depending on your compliance history.

Penalties for knowingly hiring or continuing to hire workers ineligible for U.S. employment are much higher, starting with fines that range from $573 to $20,130. The higher penalties are levied if the government establishes a pattern of behavior and repeated efforts to circumvent the law.

But the penalties don’t stop there. You could be imprisoned for up to five years, as well as barred from receiving any federal contracts for these types of violations.

Making Sure You’re in Compliance

Don’t wait until you’re being audited to brush up on your immigration-related legal obligations. Instead:

• Establish I-9 audit processes with your HR staff or your Professional Employer Organization to ensure I-9 completeness and accuracy
• Ditch paper records in favor of electronic onboarding software to capture all of your new hires’ critical information
• Train your hiring managers and HR department, using the U.S. government’s “Handbook for Employers M-274,” (which has detailed information about I-9 completion) as a basis.

If you need help ensuring you’re in compliance with the law, we can help by training your staff, helping you establish internal audit measures, or handling related HR issues. Contact us today to schedule a consultation with a certified HR professional. And for more practical information and guidance to help you best manage your workforce and stay-up-to-date on relevant Arizona state and federal laws, subscribe to our weekly blog today.