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Form I-9 Responsibilities & Fines

Employers have responsibilities they must adhere to during the hiring process as it relates to the Form I-9.   All U.S. employers must complete the Form I-9 for each individual they hire for employment in the United States; which includes both U.S. citizens and non-citizens.  

Both the employee and employer must complete the form. The employee must attest to his or her employment authorization as well as present the employer with acceptable documents establishing both identity and employment authorization.  The employer must examine the original/unexpired employment eligibility and identity document(s) an employee presents and then determine whether the document(s) appear to be genuine and to relate to the employee.  Employers must retain the Form I-9 for a designated period and make it available for inspection by authorized government officers.  Failure to adhere to these practices will result in penalties and fines, and sometimes even result in criminal charges.

In early 2020 a Texas construction company was fined $3 million dollars for their plan to hire undocumented workers while other companies were fined based solely on mistakes made on the Form I-9 itself. 

The Department of Homeland Security announced that Form I-9 fines will be increasing in 2020.  All new fines will be effective for penalties calculated after June 17,2020 for associated violations which occurred after November 2, 2015. 

The new fines are reported below:

Penalties for Knowingly Hire / Continuing to Employ Violations

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Penalties for Substantive and Uncorrected Technical Substantive Verification Violations

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TPS for South Sudan Extended for 18 Months

The Department of Homeland Security has decided to extend the Temporary Protected Status (TPS) designation for South Sudan for 18 months, through May 2, 2022. Current beneficiaries who want to maintain their status must re-register from Nov. 2, 2020, through Jan. 4, 2021.

Given the time frames for processing TPS re-registration applications, USCIS has automatically extended the validity of certain Employment Authorization Documents (EADs) issued under the TPS designation for South Sudan through May 1, 2021.

Completing Form I-9

To complete or update Form I-9, Employment Eligibility Verification, for TPS South Sudan beneficiaries who present an EAD with a Category Code of A12 or C19 and a Card Expires date of Nov. 2, 2020, enter May 1, 2021, as the new expiration date of the automatically extended EAD on Form I-9. You must reverify these employees before they start work on May 2, 2021.

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Form I-9 and COVID Procedures

The Department of Homeland Security has temporarily relaxed the standard protocol for in-person verification of Form I-9 Section 2 documentation process earlier this year due to the COVID 19 pandemic.

What does this mean?

In March of 2020, the Department of Homeland Security relaxed the requirements regarding the Form I-9 as it relates to viewing of Section 2 documentation. Employers with employees taking proximity protections are not required to review an employees Section 2 identity and work authorization documents in person, and instead requires employers to inspect the documentation remotely (using a video call, email, fax etc.). For any Form I-9 completed using this measure, the employer is required to record “COVID-19” in the Additional Information box within Section 2 as a reason for the physical inspection delay. Employers who participate in this process are also required to provide written documentation of their onboarding process for each employee whose forms was completed this way. Note that the employer is entirely responsible for this process.

When normal operations resume, any employee who was onboarded using the relaxed protocol will need to present the documentation provided for the Form to the employer for it to be inspected. This must be completed within 3 business days of resumed normal operations. Employers must also update the Form I-9 stating that “documents physically examined” with the examination date in the Additional Notes field, or within Section 3, whichever is appropriate.

The policy only applies to employers and workplaces that are operating remotely and was originally set to expire January 31, 2021. On January 28, 2021, DHS announced that, due to ongoing precautions related to COVID-19, the Form I-9 flexibility policy will be extended for an additional 60 days, and is now set to expire on March 31, 2021.