As worksite raids by Immigration and Customs Enforcement have dramatically escalated, employers are looking for answers to defend themselves from the outrageous fines and penalties associated with these raids. The aim of these raids is to target not only employees who are unauthorized to work in the United States but also the employers who knowingly hire undocumented workers. Believe it or not, the I-9 Form is the best defense and gives employers all the information needed to be in compliance with federal law.
Federal law requires all U.S. employers to verify the identity and employment authorization of new employees within the first three days of employment. On this form, the employee must attest to their employment authorization and present acceptable documents to prove their identity and employment authorization. The employer is then obligated to examine the original documents (copies are not acceptable) and complete all the fields in Section 2 to properly record all relevant information from the documents they are examining. Finally, the signature certifies that the documents presented reasonably appear to be genuine and relate to the employee who has presented them. If the document(s) do not reasonably appear to be genuine or to relate to the person presenting them, you must not accept them. However, you must provide the employee with an opportunity to present other documents from the Lists of Acceptable Documents (page 4 of the Form I-9). Note that an employer may NOT dictate which forms the employee presents for Form I-9. You cannot tell an employee that they must bring a driver’s license and social security card with them for their onboarding. The employee may choose a document from List A or one from List B and one from List C found on the last page of the form.
However, the I-9 form is often neglected or forgotten. This form proves your due diligence to verify the employment authorization of everyone who works for you. It may seem minor and administrative in nature, but it serves a very valuable purpose when completed correctly. In my 20 years of Human Resources, I have completed hundreds of I-9 forms and conducted lots of I-9 audits for clients. Here are the most common mistakes employers make when completing this form: Incorrect version of I-9 Form:
Incorrect version of I-9 Form
Incorrect/missing hire date
Incomplete fields in Section 2 (completed by the employer)
Failure of employer to sign within three business days of hire
Failure to reverify rehired employees or expired work authorization documents
I-9 Form filed in the employee’s personnel file
There have been 13 versions of the I-9 form released since the form was introduced in 1987. Not all versions are valid for use. Once a new version is released, the U.S. Citizenship and Immigration Services (USCIS) indicates whether any previous versions are still valid. Employers must confirm they are using a valid version of the form at the time the employee is hired or rehired. To verify you are using the correct version of Form I-9, look at the date printed on the bottom left corner of the form, NOT the expiration date. You can verify which version is current on the USCIS website at www.USCIS.gov.
Section 2 of the form can be overwhelming. The USCIS has developed a very helpful Handbook for Employers that covers every part of the form, which can also be accessed on their website, www.USCIS.gov. Make sure that you complete every field in Section 2 that applies to the documents the employee provides. The employer must also complete the “Hire Date” on the form in Section 2 just before the signature block. This field is often overlooked. Finally, the form must be signed by a representative of the employer within three days from that date of hire. You may terminate an employee who fails to produce an acceptable document or documents, or an acceptable receipt for a document within three business days of the date employment begins.
Keep in mind that you are also required to reverify employment authorization when an employee is rehired or when certain employment authorization documents expire. You may use Section 3 of the form for reverification if the employee is rehired within three years from the date their I-9 was originally completed. If you are reverifying employment authorization of expired documents, it must be completed no later than the expiration date. You may use Section 3 of Form I-9, or if Section 3 has already been used for a previous reverification or update, then use Section 3 of a new Form I-9. It is important to note that reverification is never required for U.S. citizens nor noncitizen nationals. Do not reverify the following documents after they expire: U.S passports, U.S. passport cards, Alien Registration Receipt Cards/Permanent Resident Cards, and List B documents.
Although you are not prohibited from maintaining I-9s in the employee’s personnel file, it is typically not recommended because it contains information that should not be associated with employment decisions. Managers should not have access to these forms. Also, it’s very cumbersome to pull these documents out of the personnel files in the event of an audit. I-9 Forms should be maintained in a separate file designated only for I-9 Forms, preferably sorted in alphabetical order by last name. This enables an I-9 auditor to easily audit only the I-9 forms and not other personnel documents that may be maintained in the employee’s file. I-9 Forms should also be maintained in a locked cabinet and only those with a business reason should have access to these records. You should also review this file at least once a year and pull out I-9’s for any employees that have been terminated to move to a separate file until such time that they may be destroyed. You may destroy I-9 forms three years from date of hire or one year from date of termination, whichever is later. You should never destroy the I-9 of an active employee. If an employer fails to destroy I‐9 forms within the outlined time frame, they will be subject to fines. Furthermore, if an employer is audited and has not destroyed outdated I‐9 documents, any errors found on those outdated forms may also be subject to fines.
I often receive questions about maintaining copies of the documents provided. If you participate in E-Verify and the employee presents a document used as part of Photo Matching, you must retain a photocopy of the document they present. If you do not participate in E-Verify, you are not required to make photocopies of documents. However, if you wish to make photocopies of documents other than those used in E-Verify, you must do so for all employees. Photocopies must not be used for any other purpose. Photocopying documents does not relieve you of your obligation to fully complete Section 2 of Form I-9, nor is it an acceptable substitute for proper completion of Form I-9 in general. Employers that choose to retain copies use the copy as their proof that the documents presented appeared to be genuine while others argue it’s hard to prove authenticity from a photocopy.
As you can see, the I-9 form packs a powerful punch in terms of responsibility and compliance. Hopefully, you are compelled to give this form the attention it needs. More information can be found at https://www.uscis.gov/i-9-central.
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