Employers rarely question the general rule that independent contractors are not required to complete a form I-9. Most employers believe that, if an individual is labeled as an independent contractor, a form I-9 is not required. In our experience defending clients in I-9 enforcement audits by the Immigration and Customs Enforcement (ICE), individuals that an employer considers to be independent contractors are not given an all-inclusive exemption from the I-9 requirement. In fact, most Notices of Inspection, served by ICE as a result of an I-9 audit, demand that employers produce a list of independent contractors utilized in addition to all forms I-9 for employees. In addition, ICE agents typically question employers to determine if independent contractors are properly labeled as such. If the independent contractors receive significant control or supervision from the employer, are involved in the production of the employer’s products or engage in an essential function or service central to the employer’s business, ICE is likely to request that the employer provide valid I-9 forms for each contractor. If such forms do not exist, ICE could seek a penalty of up to $1,100 per contractor.
Click here to review more specifications on what constitutes an independent contractor from standard employee requirements on our Immigration Blog.