VANNOY:

How to fill out an I nine form, how to avoid fines, audits, and stay in compliance. So this is a topic that you might be wondering. Okay? Why don’t we just email you some directions how to fill out a form. And the reason is, this is the number one most audited thing that happens to employers in the, in, in the simplest, easy way for them to fix, but the most common way that employers get in trouble. A and they don’t mean to. So the fix is easy, and we have the great, the best coach in the world here to, to talk us through it. My guest today, many of you guys know Mary Simmons. She’s the Vice President of HR Consulting ed Ashore. She’s a, a SHRM certified professional. For the last eight years, she’s been an adjunct professor at the New York Institute of Technology. And prior to Asure, she was the director of HR consulting for a 55 year old HR consulting firm in New York. Welcome back, Mary.

SIMMONS:

Thank you.

VANNOY:

Okay. So, so Mary, set the stage. Why, why are we having this conversation to talk about this topic versus a blog post or a two minute explainer video? How to fill out a form?

SIMMONS:

Yeah. And, and, you know it’s not the most exciting of topics, right? <Laugh>, we, we have a lot sexier topics that, that we have talked about in the past, Mike, for sure. But, you know, there’s two camps of employers out there that we are assisting with their hr, right? So I have one camp of employers that say, don’t tell me anything about the I nine. I don’t wanna know. I’m a restaurant or I’m a manufacturer and I know I have people that, you know, may not, you know, pass the muster of an I nine, but these are the workers that I can find right now. So don’t tell me about I nine s because if I know about ’em, I’ll get into trouble. So I just want anybody listening who’s in that camp to understand that not knowing or pretending you don’t know about I nine s will not defend you in any way, shape, or form, right?

Right. I am liken it to, if you’re driving down the highway and you’re going 90 and the police officer pulls you over, if you say, oops, sorry, officer, I didn’t know the speed limit was 65. You tell me whether or not he’s gonna give you a ticket. For sure. You’re getting a ticket and you’re getting a fine. And in some states that might even put you in jail depending on how far you are over the speed limit, right? So, you know, I say this all the time, Mike, but you cannot contract around the law, right? You can’t manipulate the law to make it convenient for you. And, you know, as HR consultants, one of our main pillars is to keep our the people that we work with, the clients that we work with, compliant. And so you have to fill out the I nine form, right?

Can’t contract around the law, you have to do it. And then the other camp is, you know, doing the I nine, but maybe they have somebody, I was just talking to an employer yesterday, and they’re like, yeah, you know, the guys out in the field, on the trucks, on the construction site are the ones that are completing the I nine. And my question was, have you ever trained them in how to do I nines? And the employer kind of looked at me funny, Mike, and they were like, what do you mean? Have I trained them? Well, it’s, you know, it is on the facia. Very simple, right? It’s not that difficult when you look in it, look at it, right? There’s, you know, areas to fill out and you fill ’em out, right? But it does go beyond that. And when the auditors come in, you know that word auditor, you know, it has a very serious and sometimes a negative connotation.

And I will tell you, when the division of Homeland Security Ice Division comes in to do an I nine audit, they are looking, right? What are they paid to do, Mike? They’re paid to make sure <laugh> that you’re filling out that I nine correctly, right? And they will nitpick those. I nines, you know, I’ve been through many an audit with our employers, and I can tell you some of the things that they find ’em for, I’m scratching my head and gone, really, you know, but, you know, they’re there, you know, to make sure that these are filled out complete completely and correctly. So, so let,

VANNOY:

Let, let’s, let’s segue and maybe kind of, kind of come back to come up 20,000 feet here. So, like, I, it’s my personal opinion. I’ve worked with a lot of employers. They, they fill out they have their employees, you know, some type of onboarding documentation, whether it’s good advanced electronic, like in an HR system like ours, or it’s you know, paper and pencil doesn’t matter. And because they personally file taxes and they’ve personally been an employee of someone in their life they, they, they know how to fill out a say a W four themselves, right? So they know how to coach their employee. Hey, how do I interpret, you know, how many deductions and, and whatnot. So I think most employers just kinda off the top of their head, know how to coach an employee through that. Most employers, probably, especially new employers, small growing companies, don’t really know how to coach people through this. They just say, Hey, here’s the form, here’s the instructions. Have at it. So let, let’s stop. What is the purpose of I nine? You talked about homeland security. What, what, when did I nine s even become a thing? What’s the purpose of them? Because that really kind of backs into the criticality of getting it right?

SIMMONS:

Yeah. So, oh, that was a loaded question or statement. Yeah. so let, so let me try to hit on everything that you just said. So first of all, any employee who was employed after 1986, right? And, and I serve as clients who have people that started in 1985, believe it or not, you don’t have to do an an I nine if they were at your firm starting in 1985, but after 1986 and forward every single employee who draws a paycheck, right? So remember, employee not a 10 99, 10 90 nines are not employees must fill out an I nine. The purpose is to pr provide proof of eligibility to work in the United States. So, you know, one of the, one of the questions that I will ask, you know, when I’m, when I’m teaching my HR class to employers managers, right? And or, you know, when I’m teaching my, you know, college level class for HR at N Y I T, I will ask people.

So if you’re not a US citizen, is, is an I nine proof that you’re a US citizen? It is not. Right? You can still work in the United States if you’re not a, a US citizen, if you have the right identification, right? And this is where it really gets slippery and confusing for employers. This is where they’re calling me and saying, I never saw this form, Mary, can I take this? And by the way, the division of human of DHS and ICE change what they accept and what expires and what doesn’t expire and what matters. And, you know, we can’t get into that level of detail today, but that is what, how we add value is HR consultants. So again, when you look at the form, you’re like, wow, that seems pretty easy to fill out. But when you understand the nuances and you get an employee, you give you a form you know, a green card or some type of eligibility that you haven’t seen before, you know, it may be, you know, hard to understand.

One thing that is very, very clear, you cannot accept anything that is expired, right? But there are things that you can accept and say, okay, you’ve got a certain amount of time to get me the right form. And again, you can see where that gets confusing. And I want to also address your statement, Mike, about how do, how do employers coach employees to fill out the I nine? Well, this can be a little bit of a slippery slope, right? Because I had an employer once. And what we recommend is that one of the projects we do for our clients is an I nine audit. Very important. And face it, Mike, you can’t do an audit on yourself, right? Because if you did it incorrectly, you’re not gonna know that you did it incorrectly. So you can’t correct yourself. So it has to be an outside body, and it better for me to do the audit and help you correct it. Then have ice come in and do an audit and fine you, right? And one of the audits that I did, I noticed, wow, Mike, all of your employees brought in a social security card and a driver’s license as their identification. I don’t see any other forms of identification being provided. And they’re like, well, that’s what I tell them to bring in. I’m like, okay, give you tip here, <laugh>. You can’t do that. Right? So really you can give, and why is that? Why is that mayor,

VANNOY:

Why, why can’t they do that? Why can’t they do that?

SIMMONS:

Well, first of all, that can be seen as discriminatory because you will have people that don’t have a driver’s license cuz they can’t afford a car. And you may have individuals that don’t have social security cards but they have other eligibility paperwork from, you know, got it. A foreign country to work in the United States. You cannot tell employees what identification to bring. You must give them the instructions, and then they choose from those instructions what identification they can bring. And of course, you do have to give them some guidance, right? Because <laugh>, the instructions are very long. And so they may, you know, say to themselves, you know, I don’t know how many employees actually read them. Cause you know, most employees have filled out the paperwork. The instructions right now are 15 pages long. Yeah. Yeah. And I do ask that every employer two today, after you listen to this, reads those instructions because they are instructions for the individual filling them out. But they will help employers, help their managers to understand how to guide individuals to fill out the form. Really, when you’re guiding them, Mike, you, you’re answering questions and you’re looking at the form and saying, please fill this piece in because you didn’t fill that in. Right? You, it’s, it’s a check. You’re checking them. Yeah. And then you have a portion, right? So the portion, the top section one must be filled out by the employee. Don’t touch it. As an employer,

VANNOY:

I’m, I’m now realizing what’s, what word, word I use that triggered you. I said how to coach employees <laugh> coaching, connotes steering and advising versus just explaining instructions. I, I, I, I, I gotcha. All right. So, so, so, so jump into it. I’m, I want you to, to share, you know, really practical advice for folks. How should they be completing the I nine? And, and maybe as, as you, cuz trusting, so 15 pages is a lot, may not, maybe not everybody does it, but we’ll trust everybody can read that’s watching today’s show. Yeah. as you give the advice kind of share though, why you’re explaining it this way, because here’s what the mistake people make in, in, and, and, and where they get it wrong. Yeah.

SIMMONS:

Yeah. And I, and I wanna also tell everybody that <laugh>, the I nine form that you’re using right now is set to expire. And, and this has happened before where ICE will say, we know it expired, keep using that form until we create a new form in 2023. They’re not exactly sure when that new form is coming out, but they did give us a tiny bit of information about that new form. So as I go through how to fill out the form right now, currently I will also tell you some of the proposed changes, and then we will put the new form on our website when it comes out so that you can get it. And again, this is something we will coach and counsel your managers on. Anybody who is filling out the I nine in your organization will definitely need some training to fill out the new form.

 The current form, Mike any, no sections can be left blank. If there is a section that is not to be filled out, for example, somebody who doesn’t have a middle name, you must put na not applicable in that, in that section. And again, if it’s section one, the employee needs to, to fill out that area. And so that’s where you would look over the form after they fill it out and you start to fill in your section and you’d say, Mike, you left this blank, please put na there. Okay? Now, the proposed changes, and I don’t wanna confuse anybody, but I want to be as thorough as I can in this, you know, in this session that we have today, they will allow some blank spaces. And I, and I know we’re getting really picky, but I will tell you, Mike, I’ve seen employers go through an audit and they left areas blank on the previous form, and they were fined. Okay. So you’re saying, so sometimes you a slap on the wrist,

VANNOY:

You’re, you’re saying the new one that’s gonna come. There’s, you’re, you believe that there will be blanks loud, but currently today there can’t be blanks. That’s what you’re saying.

SIMMONS:

Correct? Correct. Additionally, the instructions, which are 15 pages long, they’re gonna cull down to seven pages. Okay? So that’s another one of the changes. And, and Mike, we, you know, you and I, we will definitely send out information instructions on the new I nine because the gist of what we’re gonna talk about today will be the same on the new form as it is on the current form. So, you know, as we said, section one is for the employee to fill out. One important thing that I wanna note, and again, this is from going through multiple I nine audits with clients is that you must use, I would use the same pen color. So whatever, if the employee is using a black pen, you use a black pen, never can you use a pencil and you cannot have I nine on the form white out on the form anywhere, okay? On the physical form, right? You can’t really have white out if they’re filling it out electronically. But on the physical form, no white out, they, they just assume, you know, look, you probably made a mistake and you go to white it out. But when they come to audit, they think you doctored it, right? Right. So that’s why they’re gonna find you

VANNOY:

Speak to that

SIMMONS:

Color, color and also

VANNOY:

Stick on the color pen. I’m assuming there’s not a legal requirement, but I think I know what the practical advice is, is behind that. Why is it that you’re coaching people to use the same color pen

SIMMONS:

Again? They the auditors often you will get, when they do an audit, and we’re gonna talk a little more about audits in a minute, but when they come in to do the audit, a lot of times they’ll give you, most often they give you three days, right? And that’s when my employers call me and say, yikes, Mary, get over here. You know, help me with this, you know, get prepared for this audit.

Right? Okay. When they come to do the audit, if there’s two different pen colors, they think you, you edited that form, which you shouldn’t do in most cases when you do make changes, right? When I come in to do an audit for you, or I do that audit virtually, I will say to you, Mike, I see that there is not na in those blank areas, for example, please put NA on that form, but in the truest sense of auditing your I nine s, what ICE will instruct you and I will mirror that instruction, is that you should say, we did a self-audit or, and it was performed by Asure Consulting on such and such a date or dates. These are the corrections we found and made. Okay? But you don’t wanna make, you know, so sometimes when you make those corrections, you put a little initial, right?

Got it. And you and or you list on your summary sheet what you changed. You don’t want it to make it look like you were trying to slip something under the rug, right? And that goes for any audit, right? It’s, it’s kind of like audit rules <laugh>. One other thing. I had an employer call the other day about the Spanish I nine form right now, that form. Now remember what ICE is, what the I nine is formed, the I nine is to is to show that employees have eligibility to work in the us There are many forms that are provided in Spanish. Okay? The I nine in Spanish is meant for Puerto Rico only.

It is not meant for Spanish speakers in the rest of the us Okay? So, so let me just talk to this for a minute. Yeah. What I have done in the past is I have given that copy of the I nine to somebody who’s bilingual as guidance, but they fill out the English version of the I nine okay. Outside of Puerto Rico, okay? Yep. When you have an individual, right? So it’s not mandatory that you speak English to work in the United States. You just have to be eligible to work in the United States, right? There is a section on the I nine on page one entitled preparer and or Translator certification. This is for individuals who may not be able to write themselves, they may not be able to read because they may be blind. And it is for an individual who cannot understand English, they can bring in a translator.

The organization is not mandated to provide a translator. But of course I recommend that employers with a a population that is largely Spanish speakers, I have a manufacturer like that, and, you know, they get a lot of referrals from, from their, you know, the individuals that already work there that are, you know, friends or family, and they are Spanish speakers. You know, we trained, you know, somebody in management to, to guide them and be the translator for them. But the employee can bring a family member or a friend to help them fill out the I nine. And, and that goes the same for anybody who cannot fill out that form themselves. That section is for for them to have guidance, either translation or, or they need somebody to fill out the form for them, okay? The, the documentation is the same.

Okay? so the other thing that I think is really important that everybody understands is that during c O D ICE came out and many regulations were changed during c o, that you could remotely have individuals fill out the I nine form, right? So that means that they were either doing it electronically or you were sending them a physical I nine form. They were filling it out and then sending it back to you either electronically or, or through the mail. They just, just this week extended that again, it was, it was set to, to sunset last month or, or this month, but they extended it till July 31st, 2023. Now, let me stop there for a minute, and I’m gonna make an educated guess here. Okay? The world has changed forever and remote and hybrid situations are going, are here to stay going forward.

And there’s, there’s lots and lots of organizations who always had a salesman in Utah and the offices in Texas that always existed, right? Right, right. So, you know, some of the things that employers have done is you can have that individual in Utah get a notary to notif notarize that those forms are such as they are, and have the individual fill those forms out. But to fill it out remotely, you can still do it until July 31st, 2023. And my guess is they’re gonna extend that forever, but have have stronger parameters around it as it’s, as it stands right now, after July 31st, 2023, they expect you to see those forms in person, physically, somebody, okay? Ice also during covid and extending until July of, of next year. What can do with those forms is you can the applicant now an employee can designate somebody, a mother, a father, a sister, a brother, to verify that those forms are legitimate. Okay? So, so employers have a lot of options. But again, Mike, this is where I think we add the most value. And, and this is why I love my job, right? Because we’re here to help employers interpret these laws as they apply to them specifically. So how, how do they, how, how do they work it for their organization in particular? That’s what I find it is, is where we add the most value.

VANNOY:

So, so

SIMMONS:

And if I can just, yeah,

VANNOY:

I really wanna make sure I I have it, have it right. So it’s been extended through June next year, June of 23,

SIMMONS:

July, July 31st, July 20th, 2023.

VANNOY:

The ability to do these remotely are, are you saying that part of the remote, you do not have to have these notarized by someone? A, a a notary witnessing you do

SIMMONS:

Not

VANNOY:

Sent. Okay.

SIMMONS:

You do not.

VANNOY:

So I’m a remote worker. I’m, I, I am working today in my home office in St. Louis. I just start working for this company, Asure in Austin, Texas. I get my I nine form today. I can fill this form out, I can scan it, I can email it, I can do whatever. I don’t have to have it notarized prior to the covid situation, that would’ve had to been notarized, correct?

SIMMONS:

Correct. Now, understand the precipitous here is that DHS is saying after July 23, I do in the future want you to see those forms in person. But I’m making an educated guess here that they, with these changes that they’re gonna make to the form they have also whispered that they’re going to find a way to make that remote i nine easier, right? So that you don’t have to see them physically. Now, whether or not they do it, I can’t promise. I’m just making an educated guess.

VANNOY:

Yeah, yeah. There has been something. And

SIMMONS:

Until they come out with, yeah,

VANNOY:

It, it, it’s felt very, it’s hard for a very long time. Cause like you say, remote work has been around for, you know, 20 plus years right, right. Long, long before covid. So, yeah. And, and asking, yeah,

SIMMONS:

Pre covid.

VANNOY:

So asking your employee who works somewhere else to go find a notary, it’s like they don’t even know where that’s, that’s not even an easy thing to do anymore. It used to be you could go to your bank and have something notarized and now you go to a bank and there’s not even a human being that works there. And if they do, there’s not a notary

SIMMONS:

Yeah. Yeah, absolutely. And then, you know, currently, you know, the I nine is two pages. They’re promising to cut it down to one page. And put, there’s a recertification. So if I leave ashore and then I come back in a certain amount of time, you can just recert me. Instead of having me fill out a new I nine, they’re gonna pull that off and have that as a separate form. So hopefully they call it down to one page. It used to be one pa, one page I nine, so I think they can do it. But currently it’s two pages. So the second page has a small section with the employee’s information needs to be filled in again, and the employer can fill out that information. But the employee the employer has a section on the second page to fill in. And this should be completed by their first day.

And you should get that documentation by the third day. So, you know, you can fill it in and then the employee says, oops, I forgot. Or I applied for a new social security card. I have the form that says it’s coming. I filled it out. I’m getting it. Here’s my license. And you can wait a while for that, okay? But no documentation by their third day of employment, you must send them home and stop paying them. And this is a big sticking point with a lot of of my employers. I understand it’s hard to find people right now, you know, this employee is saying, I lost my driver’s license, or I I lost my green card, whatever it is. If they show you proof that they’re looking for it, I, I hired an attorney once for an employer and she lost her identification.

Her, her wallet had been stolen the week before. I had proof that she gave me that she applied for a new license and she applied for a new social security card. And that would probably pass the muster for an auditor. You hear me say might, right? Because I never say never. And I never say always when it comes to human resources. And I, you know, ICE has rules and then the auditors all, you know, they look at them differently. <Laugh>. Yeah. But you know, the employers that, that I support will say, no, I need this employee. I know they don’t have any identification, but I need this employee. And look, we are here to advise, we are here to protect you. We are here to customize things. But I’m not ice, right? I’m on your side. I’m on the employer side to protect you, right?

 So, you know, we advise and then the employers do what, what the employers do. But that second session section, that second page and it’ll probably be the bottom of the first page when the new form comes out, that’s where I really need to do the training with the managers and whomever is filling out an I nine. There is some specifics there, Mike that I really would go over in person, because that’s where the auditors are gonna get you, right? How did you fill out that you took the driver’s license? Did you fill in New York State driver’s license, put the full number and the expiration date? All of that has to be filled in.

VANNOY:

Yeah. Yeah.

SIMMONS:

So that’s the basics of how to fill out the form. But of course, when we do the training with managers and owners, we, we go into much more detail,

VANNOY:

Okay? So we’ve got the form filled out correctly, we’re using the right one. We know that Spanish version is only for Puerto Rico. It’s not for Spanish speakers. We have to, you have to work with those employees. Translator, facilitate that to happen. Make sure they understand the instructions. Okay, we’ve got it filled out correctly, no blanks. We got proper documentation. What, what do we do now? How, how do we, how do we properly store this information, track this information what, what are our legal requirements? What’s your practical advice?

SIMMONS:

So this is again, I think where we add value, right? I always say to employers, I’m gonna keep you compliant. I’m gonna keep giving you updates and helping you understand how to, how to customize that for your organization. I’m also gonna give you best practices, and that’s really where I’m gonna pull your HR function from operational, administrative up to strategic. And when it comes to I nines, here’s my best advice. Look, all HR documentation has different storage timeframes where you store it, how you store it, the I nine is no different. You can store those I nines, either physically, if you are still physically accepting, I nines best practice is to put the, have an I nine binder. Why you might ask Mike <laugh>, the answer to that is because when ICE comes in, I don’t want them looking in your employee files. I want them looking only at the I nine.

Now they’re, they’re not really going to, and they don’t have the authority to say you know, I see some medical forms in the employee folder, or they’re not secure. And, and, and I’m going to, you know, tattletale on you. But they might, right? Once one age government agency sort of has your name cuz they audited you. What I’ve seen, and I don’t think it’s coincidental, but I have no proof, is they do get, you know, audits from, you know, the other, you know, the D O L happens to come in, you know, right after that. So best practice,

VANNOY:

It’s interesting. I’ve

SIMMONS:

Never heard that before. If you’re doing your I nines, I’m sorry.

VANNOY:

I said that’s really interesting. I never heard or thought about that before. I just, in my brain, I would’ve been storing businesses I’ve been involved in. I did, I stored it all together. I had all, all my onboarding documentation, the paperwork associated with a person one folder and in, in in, in, oh no,

SIMMONS:

No sir. No sir. So the I nine I recommend you pull it out and you have two binders. Physical, we’ll talk about physical first one binder just do it alphabetical, it’ll make your life easier is active Yeah. Employees, right? So understand, I nine forms must be kept for either three years after the employee’s hire date or one year after termination date, whichever is longer later, okay? I have to remind myself that all the time, right? So your, your second binder is terminated employees and ICE is going to, when they audit you, they’re gonna look at both. Okay? So what the reason you are taking those when an employee terminates Mike moving Scott’s I nine into the terminated binder and making sure that I’m keeping it for the timeframe that I just said is so that when that timeframe is up, right?

So you’re gonna have to look in your terminated binder weekly, monthly, whatever your cadence is. Look in that. What I used to do is say to the employers, look, you just put Scott in there and you know that you can destroy his I nine a year from today. Okay? Put a, put a calendar, have a Excel spreadsheet, whatever it it is that you know, works best for you to get that out of there and shred it. Okay? Because the less I nine forms that they have to audit, the better off you’re gonna be. Okay. that’s

VANNOY:

So interesting.

SIMMONS:

And they, they will say to you, get rid of these old ones.

VANNOY:

So Mary, you’re saying even for once you passed the three year window for current employees?

SIMMONS:

No, no, no. Terminated only

VANNOY:

So two current

SIMMONS:

Employees, you keep ’em for the life of the employee.

VANNOY:

I misunderstood that. Okay. There’s there

SIMMONS:

Act folder. I thought I heard something different. And a terminated folder. The terminated folder gets destroyed three years after the employees hire date, or one year after their term date, whatever’s longer. Got it. Ok. So you can also keep your I nines and I, you know, I just think this is so much easier. We’re talking about remote workforces. Even if you don’t have a remote workforce, it is so much easier if you use, you know, our, you know, electronic onboarding, advanced hr, and you send those onboarding documents to Scott, my new employee ahead of time. It’s just gonna make, you know the process when they start that much easier. When you send the I nine, my friends send those instructions for them to look at and the I nine is right now electronic. What they are promising for 2023 is that it will be very compatible with every electronic device.

So I don’t know that it is, I think there’s probably, I haven’t heard that anybody’s had problems with it electronically. But it’s not super pretty on a phone. But they’re gonna make it very compatible to be done electronically. So electronically, Mike, you have a couple of options, right? You could put that I nine or those I nines in an electronic folder that says I electronic I nines you know, and active and terminated just like the binders, just mirroring the binders. But I will say that you probably could put them electronically into the employee’s file. And this is why. So the auditors haven’t really caught up with the remote. So right now, I will tell you the last couple of audits and the last couple of audits were pre covid. They were not out in the field during covid. They were home, the auditors, okay. No. So not a lot of audits going on. They did do some remotely, right? And then you would be sending, you know, a PDF file over to them anyway, right? But think about it, how much easier would it be to have that I nine in separate folders? It would save you a lot of time. But pre covid, I had employers who were keeping the I nine s electronically easy, you know, simplified, et cetera. And when the auditors came in, they asked for them to be printed

VANNOY:

Really.

SIMMONS:

So if they were in one location, it would be a lot easier. Yeah, they can, they can ask you to do it any way you want. Think about any audit they can ask for the, the, you know, so, and, and maybe they’ll catch up with that, you know, so we will update everybody, you know, in 2023 when they make those changes. We’re gonna make sure that we are the first people to tell you how to, how to, how they have updated themselves. But for now even electronically, you could put it in the employee file, but you might wanna also have an electronic folder with all of the I nines active and terminated, make your life a little bit easier. That’s, that’s what I would do. That’s

VANNOY:

So, so I’ve said this a million times. I’ll say it a million more. The purpose of the show is to show the best information possible with employers. It’s not to help anybody gain the system. So you know, we wanna help everybody to be compliant and to comply. Do you have a sense for what, what, what is the, how much scope does a, does say an ICE officer have on an audit coming for I nines for someone who does have these records electronically commingled, and, and let’s just assume employers done nothing wrong, but kinda like you said, the purpose of it. If you’re gonna do it physically, you have a binder, say, Hey, here’s your I nine S L. Look at them, ex explore them. But you don’t need to be looking at all my personnel files if I am storing this electronically. Does that, does that auditor have a legal right to say, Hey, give me login and gimme access to your HR system so that they can just kind of dig around and hunt? Or, or where do No,

SIMMONS:

No. I mean, they, they don’t have the time and that’s not really their scope, right? So they’re just gonna say, let me see the I nines, and you’ll say, Hey, can I sit you down and let you look at this, this electronic file where they all are? And they may say yes. And then they say no. See, okay. So what happens when they come to do an audit is they’re gonna give you a notice of inspection, okay? That gives you three days to produce the I nine forms and you’re gonna work with your audited auditor. Cuz I’m just gonna tell you, they’re just, they’re all a little bit different in their request, right? And so you can say, can I send you, you know, an electronic file and can you look at ’em electronically or do you need them, you know, in paper?

And I think things are evolving. But I will tell you that, that is a regular inspection. If ICE gets notification from maybe a disgruntled employee, maybe you know, somebody who knows you’re not doing I nine s. If they get a complaint like that, they can come in that day. And I, they’ve been known to look at your I nine s that day. Okay? if you have three days, call me and we’re gonna fix it. We’re gonna help you get, get things in order, okay? But I’m just saying, you know, the LA one of the big audits I did, Mike, the employer was a manufacturer with 500 employees to imagine looking at 500 forms in three days. You know, I brought a team with me, we got through them. Well, its a hell

VANNOY:

Lot more than that.

SIMMONS:

And they literally had to terminate.

VANNOY:

It’s only 500 yeah. If, if they have 0% turnover for the last decade, right? Because if there’s turnovers a hell

SIMMONS:

Lot more than that. You’re right. There was definitely, yep. There was terminated forms that we had to look at too. You’re absolutely right. They had to end up terminating you know, my recommendation seven individuals who they did not have proper identification for and the individuals couldn’t supply proper identification. Look, I’ve had employers hire, you know, Joe Smith, and a year later Joe comes in sheepishly and says, here’s my social security card. And it says, you know, John Jones. And they’re like, what? And he is like, mm, yeah, John Jones, because you can buy social security cards, you know, false social security cards. So you have to be careful, but you don’t have to be an auditor. If an employee gives you identification or shows you identification, that looks legitimate. Yeah, you’re not gonna get fined on that, right? You don’t have to be an audit auditor level, you know, to hold it up to the light and, and all that.

But you know, right? Social, you know, <laugh>. If it’s blatant, then, then you would need to know. And so after your audit, they will give you a review of the issues and the violations that they want to levy. Okay? You can negotiate with them, believe it or not, and say, listen, you know, this is the reason for this. We’re changing it. We did the audit before you came in. These are the checks and balances so that they, they really just wanna know that you’re going to be in compliance going forward. And, and they, they’re not gonna say, okay, you don’t have any fines. But, you know, if you negotiate properly and, and, and respectfully, and they see there’s checks and balances and you know, you want to be in compliance going forward, I have found that they will lower those on a pretty consistent basis.

It, it, it’s rare that I’ve seen an auditor dig in and say, you know, no I’m not changing those. And when they do the audit, you’re gonna have two different kind of VI violations that they’re gonna find technical and substantive. Okay? Now, the technical ones are, for those of you who are listening and going, oh, no worries, Mary, I fill out my I nines. I think I’m all, I think I’m all good. But in the beginning of this, I said, they get very particular about how you fill them out. So be careful about the errors, make sure you’re training your managers on how to fill them out. Those technical errors can be something like having white out on your, your I nine. It could be, you know, filling out the I nine 10 days after the employee started versus the three days.

 There’s a, there’s a lot of technical errors that they can find. Now, the substantive violations are what they sound like they are, they’re egregious in the eyes, eyes of the law, and they are typically the result. That’s where most of your fines are gonna come out of and the bigger fines that are gonna happen. Wilford dis distortion of the facts. And I can tell you, for those of you listening, when you don’t have any I nine s and in particular, if you have I nine s for some people and not other individuals in your organization, they’re gonna come down hard. I have had more than one employer come to me after they got the notice from ICE of an audit for me to assist them. And they had zero I nine s, and I’m sorry to say, I’ve had more than one of those individuals actually go out of business because these penalties can be anywhere from $252, right?

For whiteout, right to mm-hmm. <Affirmative> 2,507 per work violation. Meaning if you made the same error on all 500 employees, multiply $2,507 times 500 employees, you can see where that adds up. Yeah. Your first offense can even be up to, you know, for, for some, you know, violations can be even as high as 5,000. I’ve seen. Second offenses, you know, they’re gonna more than double it, like 1200, 500 12,537. I don’t know why the numbers are so odd, but they are <laugh>, why can’t it just be 12,500? But anyway, and then the third offense can go all the way up to 25,000 plus per violation.

VANNOY:

Yeah. Per and violation. Is it, is it possible to have multiple violations per I nine not per employee, right? Yes. Yeah.

SIMMONS:

Well, of course, of course. Cause most likely, if the same person been filling out the I nine, or if you as an employer instructed all your managers in a certain way to fill out the I nine a certain way, then th those mistakes are gonna be rampant, right? They’re gonna be on all of your I nines. And you know, and again, I’m not saying any, I don’t like to scare employers because I’m gonna help. But yeah, but it’s real. And, and you know you know, very passionate about helping people.

VANNOY:

I’m, I’m, I’m with you, Mary. We’re not trying to scare people here, but, but everyone should understand the seriousness of this, right? And, and I think if you just look, step back and look at the macro climate here no matter whether you lean left, lean right, red, blue, whatever, clearly immigration is a, is a growing topic. Our, our our workforce is becoming more and more diverse. The workforce is becoming more and more virtual. All things that impact a simple little, currently two page, soon to be one page form call the I nine <laugh>. And if you get it wrong, right, the penalties can in fact be huge. And you know, sorry to say you, that you’ve firsthand have seen businesses go out of business because the fines are so big. One of the things that when you’re, that just struck me in case people aren’t, I hate to say it this way, but maybe scared straight on doing I nines the right way from a compliance perspective,

I just thought about, yeah, that manufacturer, you’re talking about 500 employees and you had to, had to make the recommendation to terminate, what, seven of ’em or five of them. Those people relied on those paychecks to feed their families, likely, I mean, I, I’m just envisioning ahead of household who thought they filled out the I nine correctly three or five years ago, and they’re working their butts off day in, day out, being a good person in feeding their family. And because we as employers didn’t do the proper job making sure the form got filled out correctly, the right documentation and backup, and it was stored properly. I mean, it’s not just us that we’re talking about that gets impacted. It’s it’s employees who may be perfectly legal to work here, but the form was wrong. So, th this is, this is to certainly, it’s about compliance. The purpose of the show is to help businesses and entrepreneurs stay compliant and get the best information they can, but there’s a real human impact if we get this wrong, beyond fines in have into pain, the butt dealing with auditors, right?

SIMMONS:

Mm-Hmm. Mm-hmm. <Affirmative>. Yeah. Absolutely.

VANNOY:

All right. Mary, what, what else around compliance? So we talked about the form, the form itself. It’s not that it’s that hard, but there are some minimum requirements. You gotta fill out every single field in the form. Your advice is use you gotta use pen, no pencil, and use the same color pen, just so we soak, show consistency throughout so that an auditor, auditor looks at and says, Hmm, two different pens. Did the employee do this P portion, the employee or that portion? We just don’t want to send those red flags, right? Spanish is not for Spanish speakers, it’s only for Puerto Rico workers. And there’s, there’s changes with Covid in the past if you were a remote worker, this would’ve had to been notarized. Currently, there’s a stay, if so to speak on that. That goes through July of next year, probably is gonna get extended permanently, but still to be seen there, right? And then store these things right? Separate. Don’t store your I nines in the employee folder, because when an audit comes, they’re just gonna say, show me your I nine s and your advice, right? Is to have two binders, whether physical or electronic, my current employees and my former employees so that you have all the documentation there. And it is, tell me if I’m getting getting it right here. It’s you

SIMMONS:

Are, you’re on, at least you’re on point.

VANNOY:

If it’s an, a current employee, I gotta keep that on file for as long as they’re an employee in my terminated binder, my folder it is for at least three years or one year after they left employment, whichever is longer right? In, in, correct. So that’s, that’s the good job. That’s the, okay. So that’s the, that’s the guts of it. Don’t get it wrong because the cost can be high not just to you, yes, but to, to impact it employees. Okay. Anything else you’d wanna say to put a bow on this good job on this topic?

SIMMONS:

I mean, I just can’t in, I can’t recommend highly enough that managers need to be trained in how to fill these out. You know, reach out to us so that we can, you know, help you with an I nine audit so that you are prepared so that you can put your head on your pillow at night and go, even if ICE comes in, I feel, you know, a hundred percent confident that I’m gonna sail through that, that audit. So those, the points that you made and the fact that you really need to do self-audit, have somebody do a self-audit that that’ll protect you and, and I think, give you peace of mind.

VANNOY:

Okay, Mary, I always learned a ton from you and I, and it’s, and I’m embarrassed to say this one. I’m like, I’ve personally done it wrong in some of my businesses over the years. And and, and I’m fortunate and I, and I know a couple of people that I’m gonna reach out to after the, we hang up to, to give some corrective advice. I love this idea about separating the I nines out of personnel folders. So really, really enjoyed the conversation and for everyone else if, if there’s anything we can do to help in this area, I think Mary Mary said it well. Clearly we are a payroll and tax filing provider but I think some of the most strategic help we can provide employers is staying compliant in hr. And also the other side of the HR coin finding talent, retaining talent, developing talent to build great teams in, in a, in a world where it’s harder and harder because the war for talent has hit Main Street. Mary, thanks for your time and thanks for everybody else.