SCORE

Why care about the Employment Eligibility Verification (Form I-9)? 

Because the government does!

The Immigration Reform and Control Act requires all employers to verify the identity and employment eligibility of their employees --- and can even impose criminal and monetary penalties for employment related violations for those who fail to comply with the law.

To properly verify legal work status, each new hire must complete an Employment Eligibility Verification ("I-9") Form establishing his/her identity and eligibility to legally work in the United States. When completing the Form I-9, the devil is in the details. With fines that could range from $224 to $2,236 per violation, and adjusted in the future for inflation, don't underestimate the importance of proper I-9 administration.

An Increase of up to Five Times Current Levels in Form I-9 Inspection Audits Could be Expected

The U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) have recently announced a concerted effort in the area of enforcement of illegal immigration to include workplace raids and an increased scrutiny of documentation, such as an employer's I-9 forms.  Employers of all industries and sizes have been put on notice.

Majority of Audits Reveal Form I-9 Problems

ICE estimates that of employers audited for their Form I-9 compliance, 60-80% of paper I-9 forms are likely to be flagged for problems.  Examples of issues may include missing I-9 forms, incomplete information, forms filled out incorrectly, improper administration, and timing requirements not met.   

Pay Attention to the Details

  • All employers must complete and retain a Form I-9 for every person they hire for employment after Nov. 6, 1986, in the U.S. as long as the person works for pay or other type of payment. Note that this does include the owner of the company if he/she is paid through the company.
  • A self-employed person with no employees does not need to complete a Form I-9 on his or her own behalf unless the person is an employee of a separate business entity, such as a corporation or partnership.
  • The template Form I-9 does get updated periodically so always check to ensure you have the most up-to-date version by visiting the USCIS website at  https://www.uscis.gov/i-9.
  • In addition to the Form I-9, employees should also be given, or have access to, the full Instructions packet and the List of Acceptable Documents page.
  • The employee must complete Section 1 of the Form  I-9 no later than the date of hire.
  • A representative of the employer must then complete and certify Section 2 of the Form I-9 no later than the  third (3rd) business day after the employee started work for pay.
  • Make sure all questions are answered or write "N/A" on any question or box that does not apply or that requires an answer, per the Form I-9 instructions.
  • To complete Section 2, the employer representative certifying the form may only rely on seeing original documents and cannot accept copies of verification documents (e.g., Driver's License, Social Security Card, Birth Certificate, Resident Card, etc.)
  • Only accept verification documents that are unexpired (see exception below)
  • If an employee presents a valid temporary work authorization with a future expiration date, monitor the date and obtain an updated work authorization prior to the expiration date.
  • After seeing original documents, an employer may choose to retain copies of verification documents, at its discretion. However, whether copies are kept or not, the process must be consistent. One exception is if a document was used as part of photo matching for the E-Verify program. In this case, a copy must be kept.
  • The completed Form I-9  may be retained in a paper format or electronically at the employer's worksite. In either format, the form must be readily accessible for government inspection, if necessary.
  • I-9s must be retained for the duration of employment. After termination, the I-9 may be purged one (1) year after the date of termination or three (3) years after the date of hire, whichever is later.
  • Under the Legal Arizona Workers Act, all Arizona employers are required to participate in the federal E-Verify program. E-Verify is an Internet-based system that compares information from an employee's Form I-9 to the Department of Homeland Security (DHS), Social Security Administration (SSA), and Department of State (DOS) records to confirm that an employee is authorized to work in the United States. For more information on E-Verify, see https://www.uscis.gov/e-verify/employees/e-verify-overview.
     

A Few DON'Ts to Remember

  • Do NOT allow an employee to work after the 3rd business day if the form is not fully completed.
  • Do NOT require Independent Contractors or individuals working through an employment agency to complete a Form I-9 -- they are not your employees.
  • Do NOT accept expired documents. However, you may accept Employment Authorization Documents (Forms I-766) and Permanent Resident Cards (Forms I-551) that appear to be expired on their face, but have been extended by USCIS.
  • Do NOT falsify or backdate a Form I-9. Omissions and/or changes should be crossed out, corrected and initialed/dated.

It's prudent to conduct a pro-active audit of your current I-9 forms - and to correct any mistakes that may exist. Good faith efforts at compliance may prove helpful in the event of a government audit or if defending the company  against claim of workplace discrimination.

About the Author(s)

Betsy DeLaet

Betsy DeLaet is President and owner of HR ala Carte, LLC, a firm focused on providing project-based Human Resources to small and mid-size companies. HR ala Carte, LLC assists employers with their HR needs by serving as an “extra pair of hands”, subject matter expert for specific projects, or an on-going HR go-to resource when the need is there.

President, HR ala Carte, LLC

Key Topics

Employment Application