As a staffing agency, it's important to understand the basics of the Form I-9. Do all new hires require a Form I-9? When should the form be completed and how long do we need to store completed forms? When it comes to employment eligibility for staffing agencies, there are many questions to be answered.
For starters, let’s debunk the myth that staffing agencies are not required to complete Forms I-9 for every employee. In reality, every employer, including staffing agencies, is responsible for ensuring proper completion of the Form I-9 for all individuals hired for employment in the United States. This includes staffing agencies that manage temporary or intermittent employment contracts.
So, with that important detail in mind, let’s dive into the top four things every staffing agency needs to know when filing a Form I-9, and the legal ramifications of failing to do so.
1. When to complete the Form I-9? Proper Certification Date
As a staffing agency, it's important to know when the time is right to complete a Form I-9 on your client’s behalf. Do you complete the form on the date that the individual is placed into their new job? Or the date the individual accepts the offer to join your agency?
Ultimately, staffing agencies have two options when it comes to choosing the right time to complete the Form I-9:
- The date the new employee is assigned to their first job, or
- The date the new employee is entered into the assignment pool
Either option is acceptable. However, consistency is key. Staffing agencies should remain consistent with regard to the date they choose to use as the first day of employment when completing Forms I-9. This date must be entered in Section 2. If option 1 is used for one employee, it should be used for all employees. This standardization will be crucial should the firm ever be audited by Immigration and Customs Enforcement (ICE).
Remember, the employee can complete Section 1 of the Form I-9 as soon as, but not before, the employee accepts the offer to join your agency. Section 1 must be completed no later than the date you choose to enter in Section 2. Section 2 must be completed no later than the third business day after the date entered in Section 2.
2. Exceptions to the Filing Rules
Although we previously said that employers are responsible for completing Forms I-9 for every employee, there are certain situations when it is not required for a staffing agency to complete and maintain a Form I-9 for a new hire. Here are some important exceptions to keep in mind:
3. Employees who continue their employment after an approved leave or temporary lay-off. This includes employees who are engaged in seasonal employment.
Still unsure if your candidate is an exception? We can help answer your questions regarding I-9 forms, how long you must keep them on file, or other possible exceptions for staffing agencies. Dealing with specific employee categories and new hires, who aren't hired for a traditional role, can be tricky. Make sure you receive counsel.
Although we’ve outlined a number of the most common, there are additional special circumstances and exceptions. If you aren't sure if a newly hired employee falls into the "special" worker category, we can provide the necessary guidance to help you identify whether or not an employee verification form needs to be filed.
3. I-9 Audits and Storage
Every staffing agency is at risk of an I-9 audit by a federal agency, such as ICE. Of course, this threat can quickly become a serious issue if a staffing firm is not properly completing or storing their Form I-9s. Staffing agencies must maintain proper record-keeping systems to ensure they adequately file Form I-9s for each and every employee they place.
Staffing agencies also deal with issues that other organizations avoid when they hire new employees directly. One of these issues is high turn-over rates which are common when hiring temporary foreign workers and workers in a restaurant setting, hotel, or cleaning service. Employers are required to retain the I-9 for three years after the employees first day of work, or one year after the employee is terminated, whichever is later.
It is crucial that staffing agencies perform internal audits to ensure they have compliantly completed and stored all forms. Tracker recently analyzed more than 1.5 million I-9s to determine the top 10 most common Form I-9 mistakes.
Employers who hire workers who are not legally eligible to work in the U.S. can face stringent penalties, fines, and potential loss of ability to operate as a business. We have seen a drastic surge in workplace I-9 audits since 2017. There is also the legal issue of discrimination that staffing agencies face. It's illegal to ask a foreign worker for a green card or other proof of citizenship before assisting them in finding a new job. Conducting regular internal audits ensures that staffing agencies have proper records for all documented workers and aren't placing unauthorized workers for positions. The E-Verify system aids employers in adding additional validations to their employment eligibility verification process that can greatly reduce the risk of on-boarding someone who may be unauthorized to work.
Still have questions?
If your staffing agency still has questions regarding Forms I-9, when to complete the I-9, or whether or not your agency must complete an I-9 on behalf of a new placement, we’re here to help.
Tracker partners with staffing agencies to ensure every firm’s Forms I-9 are properly prepared and fully compliant well ahead of any federal government audit. Tracker offers the only Form I-9 compliance quote with a perfect 16+ year track record of zero client fines in federal audits.