July 2019 TRUST Consulting Group Newsletter

Keeping it simple is often a key goal in any compliance policy for a company, but sometimes it may not be a best practice and indeed could cause a company to incur liability. Employers should consider onboarding personnel products carefully and it is important not to overlook if such products attempt to address the conundrum of Form I-9 completion.

Background

 As an introduction, the Form I-9 has been around as a requirement for employers in the hiring process since 1986. Employers must determine the identity and work authorization of all new hires as of November 7, 1986. Section 1 of the Form I-9 is completed by the employee, but the employer is responsible for making sure the employee has completed Section 1 properly. For example, employers notenrolled in E-Verify may NOT mandate that the employee provide their social security number in the blank provided in Section 1. If the employee does not have a social security number (SSN) or does not wish to provide it on the Form I-9, he or she can choose not to provide the number in Section 1 and provide a List A or List C document that establishes work authorization for Section 2. So, how to deal with tax withholding, well – that is a separate tax issue addressed with the completion of a Form W-4

The Internal Revenue Service (IRS) notes that employers are required to obtain the employee’s name and SSN to complete the Form W-2 and the W-4 when the new employee starts work. Employers should ask an employee to present his or her social security card when the W-4 is completed, but the employee is not required to show the card. An employee without a social security card should apply for a social security card using Form SS-5. The IRS admonishes employers not to accept an ITIN (Taxpayer Identification Number) in place of an SSN. An ITIN is a 9-digit number beginning with the number “9” and has a format like an SSN (NNN-NN-NNNN). When the employee does not have a SSN, the IRS advises employers to enter all zeroes in the SSN block, if filing a W-2 electronically or on magnetic data or to enter the phrase, “applied for,” if applicable, in box (a) on paper W-2 forms. Later, when an employee provides a SSN, a Form W-2c is filed by the employer with the Social Security Administration (SSA) as to the new SSN assigned.

A job applicant can be work authorized without a SSN.

 What the execution of Section 1 means for an Employee

 Individuals can be subject to prosecution for knowingly and willfully entering false information on the Form I-9. For example, when employees sign Section 1 of the Form I-9, they are attesting under penalty of perjury that the information provided by them in Section 1, including their citizenship or immigration status selected, is complete, true, and correct. In addition, the employee’s signature on the Form I-9 is also an acknowledgement that he or she is aware of the severe penalties provided by law, including possible criminal prosecution for knowingly and willfully making false statements or using false documentation when completing a Form I-9. In addition, the employee is acknowledging in signing Section 1 of the Form I-9 that falsely attesting to U.S. citizenship may subject him or her to penalties, removal proceedings, as well as adversely affecting his or he ability to seek future immigration benefits.

It is also important to note that employers must ensure that all pages of the current Form I-9, its instructions, and the List of Acceptable Documents are available, in print or electronically, to all employees completing Form I-9. As a further cautionary note, Section 1 must never be completed before a job applicant has accepted a job offer from the employer.

So what if an onboarding software uses information provided by an employee to auto (pre)

– populate portions of the Form I-9?

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