Best Practices for I-9 Compliance in 2024

Key Changes Made in 2024:

• USCIS introduced a new Form I-9 to a single-sided sheet. All employers MUST now use the form version released in August 2023.
• The form is now available in fillable form on tablets and mobile devices
• New list of acceptable documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documents
• Includes a checkbox allowing employers to indicate that they examined Form I-9 documentation remotely. This option is ONLY available to some employers who are enrolled in E-Verify.

New I-9 Fines Announced: On June 28, 2024, DHS announced the following fine schedule:

• I-9 Paperwork Violations: $281 to $2,789 per Form I-9
• Knowingly Employing Unauthorized Alien (First Offense): $698 to $5,579 per violation
• Knowingly Employing Unauthorized Alien (Second Offense): $5,579 to $13,946 per violation
• Knowingly Employing Unauthorized Alien (Third or More Offense): $8,369 to $27,894 per violation
• E-Verify Employers – Failure to Inform DHS of Continuing Employment Following Final Nonconfirmation: $973 to $1,942 per relevant individual employee

In 2024, the United States Department of Justice increased the penalties for document abuse and discriminatory practices in addressing I-9 issues.

Document abuse usually occurs when an employer asks for specific documents or for more or different documents after the employee already has presented qualifying I-9 documents. The I-9 rules require that the employer allow the employee to choose which document or documents to present from the “I-9 List of Acceptable Documents.” The employer then must review what is presented to confirm whether the document or documents meet the verification requirements. Unfair immigration-related employment practices may occur when an employer treats job applicants and/or new hires differently based upon their immigration status while implementing I-9 procedures or addressing I-9 issues.

Under the DOJ’s new schedule, fines for document abuse and unfair-immigration related employment practices are as follows:

• Document Abuse: $230 to $2,304 per violation
• Unfair Immigration-Related Employment Practices (First Offense): $575 to $4,610 per individual against whom the employer is found to have discriminated
• Unfair Immigration-Related Employment Practices (Second Offense): $4,610 to $11,524 per individual against whom the employer is found to have discriminated
• Unfair Immigration-Related Employment Practices (Third or More Offense): $6,913 to $23,048 per individual against whom the employer is found to have discriminated

Steps to Improve I-9 Compliance

• Use the most recent version of Form I-9 for all new hires and reverifications. The newest I-9 version contains an issuance date of August 1, 2023, and became mandatory as of November 1, 2023.
• For E-Verify employers that wish to rely on I-9 remote document verification, ensure that you qualify to use the remote procedure and take the special steps required by this alternative procedure. Only E-Verify employers in “good standing” may use the remote verification procedures.  The employer also must continue to be in good standing each time it uses the alternate remote document verification procedure.
• Employers NOT eligible for remote verification, but who have remote employers must be sure to comply with state requirements and hire an eligible authorized representative to complete the formalities for their remote location employees.
• Whilst an electronic I-9 software system is helpful, it should not be relied on without human supervision. The Federal Government, through its agencies has repeatedly advised that use of an I-9 software program is NOT a safe harbor against penalties. Immigration and Customs Enforcement (ICE) and the Department of Justice (DOJ) have fined several employers for using flawed I-9 software or for failing to complete the I-9s properly, even though said employers were relying on electronic I-9 software.
• Confirm that the employer holds a compliant Form I-9 for each current employee hired on or after November 7, 1986, and for former employees within the retention period. Retention Period is the longer of one year after the date of termination or three years after the date of hire).
• Implement procedures to ensure that I-9s are completed within the federally mandated timelines: § 1 (employee’s section) by the first day of employment, § 2 (employer’s section) by the third business day of employment, and Supplement B (reverification section) by the date on which the existing evidence of employment authorization expires. High numbers of late I-9s or significantly late I-9s are very serious violations and lead to higher fines.
• Internal Audits: The importance of a I-9 compliance program which includes a qualified attorney conducted internal audit cannot be overstated; especially given recent trends.
• I-9 audits increased by 375% in 2018, and overall, by 5X during 2018-2021.The rules and regulations for I-9 compliance will continue to evolve. We can and should expect much higher focus on raids and I-9 inspections if there is a change in administration with the 2024 elections.
• Nearly 6,000 employers were I-9 audited in 2018, and some expect that number to was closer to 10,000 by the end of 2020.
• $14 Million in fines were issued in 2019 for Form I-9 violations.
• The average penalty per a single non-compliant I-9 is $1,862.
• 76% of paper Form I-9s have at least one error (and a similar percentage go missing or are incomplete).
• Although OCAHO has reduced fines by upto 34.16% in 2022-2023, the fines are still significant, ranging from a minimum of $13,500 (4/28/22) to $1.5 Million (1/6/22)

Best Practice:  Employers should make I-9 compliance an important part of normal business operations. The I-9 function is a substantive task. Do nottreat it as a simple clerical task. Employers must train their employees before allowing them to handle any I-9 compliance duties. An employer’s I-9 compliance program should focus on the time of hire, reverification (if applicable), and periodic internal I-9 audits. Finally, the I-9 compliance efforts should commence well before ICE arrives with the Notice of Inspection.