In 1986, in an effort to control illegal immigration, Congress passed the Immigration Reform and Control Act. The form I-9 was developed to facilitate the verification process for employees hired after Nov. 1, 1986. Since 2009, fines stemming from errors found during I-9 audits have grown from $1.5M to $31.2M. Below are some tips to ensure your organization is I-9 compliant.

Guiding Principles

  • Every employer is required to use the Form I-9 in the hiring process. The process can begin as early as the day the employee has accepted an offer of employment.
  • An English versions and a Spanish version of the form are available, however, the Spanish version can only be completed in Puerto Rico. In the U.S. and its other territories, the Spanish version can be used for translation purposes only and the English version has to be completed.
  • Employers must refrain from discriminating against individuals on the basis of actual or perceived national origin, citizenship, or immigration status.
  • Employers may delegate the authority to complete I-9s to a responsible agent but they retain responsibility for its completion and assume responsibility for any errors made.

I-9 Section 1

  • Must be completed by the employee no later than the first day that the employee works for pay.
  • The employer does not verify any information in this section; only verifies that the section is complete.
  • If the employer or another person assists in completing any information in this section or translates they must complete the Preparer/Translator section of the form.
  • Employers cannot correct or change any information in this section. All changes or additions must be made by the employee. All changes in any section of the form should be made by striking through the incorrect information; the change should be initialed and dated; no white-out should be used anywhere on the form.
  • The email address, telephone number and social security number fields are optional. If the employer participates in E-Verify, the social security number field is not optional and if the email and telephone number are provided they must be entered in E-Verify.

I-9 Section 2

  • Must be completed by the employer, including the employee’s name at the top no later than the third business day after the first day of work for pay.
  • The employer must provide the full set of instructions and the list of documents to the employee and cannot suggest or recommend which documents should be provided.
  • The certification date is the date the employee began work for pay, not the date Section 2 was completed.
  • All documents provided for certification must be originals, no photocopies.
  • The employer must accept the documents presented as long as they appear to be genuine and relates to the individual presenting it.
  • The employer is not required to keep photocopies of documents unless they use the E-Verify system which requires photo match identification. If the employer desires to keep copies of the documents they must keep them for ALL employees.

I-9 Section 3: Recertification

  • Recertification is required when employment documents expire (i.e. temporary employment authorizations).
  • Either recertification or a new I-9 may be completed when an employee is rehired within three years after the initial I-9 execution date.
  • Recertification should be done on the most recent version of the form even if the employee was hired using a previous version. The recertification should then be stapled to the original I-9 form.
  • Recertification is not required to be done when an employee changes their name, but the company should have a consistent policy for all employees.

Missing Forms

  • In the event you determine a form is missing, have the employee complete an I-9 as soon as it is determined that the form is missing.
  • Use the most recent version of the form.
  • Do not backdate the forms but type a memo for the file stating the reason that the I-9 was not completed within 3 days of the employee’s start date.
  • Be sure to enter the employee’s actual start date in the certification section.

Retention

  • Forms must be retained for all active employees.
  • It is good practice to keep all I-9’s with their associated documents in one file, separate from the employee personnel files.
  • Forms must be able to be produced within 3 days of an official request for inspection.
  • Once an employee terminates the forms must be kept for the latter of:
    • One year after the termination date or
    • Three years after the initial hire date

E-Verify

While any employer can elect to use the E-Verify system, effective September 8, 2009, Federal Acquisition Regulations requires federal contractors and subcontractors to use E-Verify to verify that their employees are eligible to work legally in the U.S.

For a list of Civil Fines and Criminal Penalties for Form I-9 Violations go to http://www.uscis.gov/i-9-central/penalties and for more information on the I-9 and E-Verify processes, please visit the USCIS website www.uscis.gov.

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