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Employer Practices: Form I-9

The Form I-9 is used to verify the identity and employment authorization of individuals hired in the U.S. It is a mandatory requirement for all U.S. employers, and it must be issued to new hires including both citizens and noncitizens. Keep in mind, it is unlawful to knowingly hire or continue to employ unauthorized workers in the U.S. For more information regarding Form I-9 please click on the link and visit our website.

In addition, USCIS recently released a revised Form I-9. Beginning Sept. 18, employers are required to use the revised Form I-9 with the revision date 07/17/17 N. Instructions are available on the Form I-9 page.

General Tips to Conduct an Internal I-9 Employment Form Audit

1. Designate a person to conduct the audit. For example, this might be someone internal, such as an HR representative or in-house counsel. It could also be external counsel. Alternatively, it could be a contractor hired just for the audit. Even if you use someone external, be sure to assist – not only in making corrections, but also use this opportunity to understand the types of training you might need and other things you can do to the correct the situation.

2. Generate lists of employees. First, generate a list of all active employees. This will be the initial scope of the audit. This is one of the first documents that ICE will request if they do an audit. Next, generate a list of all employees terminated within the last three years. This will be the secondary scope, as these need to be kept on file (see fourth step). These are still within your liability, so they are important. (Tip: don’t forget to include the employee start date in your spreadsheet.)

3. Use an audit checklist to determine the status of all forms and supporting documentation.  • Confirm that all forms are on file for active and terminated employees with complete information and supporting documentation.
• As a measure of good faith compliance and to mitigate potential fines, employers should correct I-9s with errors and missing information, keeping original I-9s and initialing changes with the date of correction.
• ***Establish a tickler system for the timely “reverification” of employment eligibility for foreign-national employees who have time-limited work permission (e.g. Form I-797 or I-94).***

4. Purge I-9 forms according to retention rules. Get rid of them when you are legally able to limit your liability beyond that date. They must be kept either one year after date of termination, or three years after the date of hire, whichever is longer.

Company Practices
• Engage in regular training for employees handling I-9 completion.
• Establish an I-9 routine and follow it consistently for every employee.
• Create a system for tracking dates of hire and termination of employment in order to purge I-9s from current storage to minimize liability (assuming no actual or threatened government investigation exists or is likely).
• Consider establishing policies (in consultation with employment law counsel) for future compliance and ongoing voluntary audits.

Current I-9s

Employers should decide whether to:
• Copy or refrain from copying original documents of identity and employment eligibility. On the one hand, copying creates a paper trail making it easier for the employer and the government to review prior compliance actions, and for the employer to make corrections to I-9s, if required. On the other, maintaining added paperwork is burdensome and costly, and requires that employers act uniformly by copying all original documents reviewed on all employees for I-9 purposes and keeping the copies with the I-9s.
• Maintain I-9s in paper or electronic format. Immigration regulations now allow electronic storage and electronic signatures for I-9s. While using digital technology has its advantages in reducing paper storage costs, the regulations pose added requirements for assuring data integrity, facilitating audits and easing the government’s investigative burden.

Future Hires
• Set up a system for handling future I-9s.
• Consider pre-completing Employer’s Business Name and Address in Section 2 and pre-fill Employer Authorized Representative’s Name and Title if it is always the same person completing the Employer Certification.
• Complete Section 1 of the I-9 on the first day of work for all new hires.  Complete the rest of the I-9 within three days of the first day of work.
• Do not accept copies of work or identity documents.
• Make sure all new hires complete I-9s in person before a company official (in order to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions).

For more Form I-9 tips for employers, please click on the link and visit our website. If you have other questions on I-9 compliance, contact our office to schedule a call with one of our knowledgeable attorneys today!