The I-9 Employment Eligibility Verification Form is deceptively simple. The I-9 is now a two-page form, but the government issued a sixty-six page Handbook for Employers on how to complete the I-9. You are not alone if you are feeling overwhelmed with your company’s I-9 obligations. We have reviewed thousands of I-9s and have yet to find an employer in 100% compliance. An employer’s failure to ensure proper completion and retention of I-9s may subject the employer to civil monetary penalties of up to $1,100 per I-9, and, in some cases, criminal penalties.
Thus, it is no surprise that the government continues its record-breaking immigration enforcement efforts. In 2012, the government fined employers almost $12.5 million and made 520 criminal arrests tied to worksite enforcement investigations. 240 of the 520 individuals arrested in 2012 were owners, managers, supervisors and human resource employees. Here is some helpful advice to minimize your liability for I-9 violations.
- use the correct version of the Form I-9
- have your employee complete Section 1 before s/he begins work
- complete Section 2 within three days of the employee’s start date
- purge I-9s that you are no longer required to keep
- take steps to protect your business
- accept restricted Social Security Cards
- re-verify U.S. passports, passport cards, or Permanent Resident Cards
- accept expired documents
- keep I-9s in personnel files
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.
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.
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.
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.
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.
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).
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.
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.
As of April 3, 2009, employers must not accept expired documents (with some exceptions).
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.
Once the final statistics for 2013 are tallied, 2013 is expected to be another record-breaking year for immigration enforcement. Now is the time to conduct an I-9 audit and ensure all your personnel responsible for completing the Form I-9 are trained on the new form. Ensuring I-9 compliance policies and programs are in place, up-to-date, and followed is vital to protect your business.