Protect your business: Train personnel on completing form I-9

Do use the correct version of the Form I-9

Beginning May 7, 2013, employers must only use the new Form I-9, which contains an expiration date of March 31, 2016. To avoid discrimination claims, do not complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies. Although the new, two-page Form I-9 mainly contains format changes, additional data fields, and further instructions to the employer, it increases the administrative burden placed on employers.

Do have your employee complete Section 1 before s/he begins work

Section 1 of the I-9 form must be completed by the employee before the employee begins work. Although the employee is responsible for completing Section 1 of the I-9, it is the employer’s responsibility to ensure Section 1 is completed correctly. If someone assists the employee in completing Section 1, that individual must complete the Preparer and/or Translator Certification section.

Do complete Section 2 within three days of the employee’s start date

Within 3 days of the employee’s start date, you must complete, sign, and date the Employer or Authorized Representative Review and Verification section of the I-9 form. By law, it is the employee’s choice which acceptable I-9 documents to present to prove identity and work authorization in Section 2. You must review original documents, not copies.

Do purge I-9s that you are no longer required to keep

You must have an I-9 form on file for all employees hired after November 6, 1986. For terminated employees, I-9 forms must be retained for three years from the date of hire and for one year from the date employment ends, whichever is later. The government may penalize you on I-9 forms containing errors even if you were no longer required to keep the I-9 forms; thus, purging the I-9 forms once the retention period is met is recommended.

Do take steps to protect your business

Because I-9 audits may be the foundation for a raid, civil money penalties and criminal sanctions, you should protect your business by conducting regular internal I-9 audits and remedying identified errors to the extent allowed under law. You can further protect your business by having outside counsel conduct periodic I-9 audits.

Do not over-document

You may only list one document from List A OR one from List B and one from List C. Even if the employee presents documents from all three categories, you must not list all three. This is called “over-documenting” and could lead to a discrimination charge with the U.S. Department of Justice. When you list a document, don’t forget to note which agency or authority issued the document, as well as when it expires (though some documents will not have an expiration date).

Do not accept restricted Social Security Cards

Social Security Cards marked “NOT VALID FOR EMPLOYMENT,” or “VALID FOR WORK ONLY WITH DHS AUTHORIZATION,” or “VALID FOR WORK ONLY WITH INS AUTHORIZATION” are not acceptable List C documents.

Do not re-verify U.S. passports, passport cards, or Permanent Resident Cards

Before a document used to complete an employee’s I-9 form expires, you must re-verify the employee’s employment authorization. You should not, however, re-verify expired U.S. passports or passport cards, Permanent Residence Cards, or List B Identity Documents, such as driver’s licenses.

Do not accept expired documents

As of April 3, 2009, employers must not accept expired documents (with some exceptions).

Do not keep I-9s in personnel files

It is a good practice to store employees’ I-9 forms separate from personnel files, as this allows for quick production of I-9 forms in the event of an unannounced government audit and prevents exposing the employer to scrutiny from other government agencies, such as the Wage and Hour Division of the U.S. Department of Labor. Keeping I-9 forms together also simplifies the tracking of document expirations, purging of forms when appropriate, and re-verification of former employees who are subsequently rehired.