I-9 Form Compliance: Ensuring Proper Employment Eligibility Verification

The I-9 Form is a critical document for employers in the United States, ensuring compliance with immigration laws by verifying employee eligibility for work.

Purpose and Requirement

The primary purpose of Form I-9, officially titled Employment Eligibility Verification, is to document that each new employee (both citizen and noncitizen) hired by an employer is authorized to work in the United States. The Immigration Reform and Control Act of 1986 mandates that all U.S. employers must complete and retain a Form I-9 for every person they hire.

Key Requirements:

• Employer Obligation: Every U.S. employer must properly fill out Form I-9 for each individual they hire.
• Employee Presentation: Employees must present acceptable documents evidencing identity and work authorization.

Eligibility Verification

The I-9 Form process is divided into sections that must be completed by both the employee and the employer.

Process Overview:

1. Section One: Employee Information and Attestation
   • Timeframe: Completed by the employee on or before their first day of employment.
   • Information Required: Employees provide personal details and attest their work authorization status.
2. Section Two: Employer or Authorized Representative Review and Verification
   • Timeframe: Reviewed and verified by employers within three days of the employee’s first working day.
   • Verification: Employers must examine the documents provided by the employee to determine if they reasonably appear to be genuine and relate to the employee presenting them.

The I-9 form is a mandatory document for verifying the identity and employment authorization of individuals hired for employment in the United States. Compliance with the form’s requirements is essential for both employers and employees.

Section 1: Employee Information and Attestation

In the first section of the I-9 form, employees are responsible for providing their personal details, including their full name, address, date of birth, and an attestation of their employment authorization. They must select the appropriate status as a citizen, noncitizen national, lawful permanent resident, or alien authorized to work. This section must also include the employee’s Social Security number, and they must present acceptable documents providing evidence of identity and employment authorization.

Section 2: Employer Review and Verification

The employer must complete the second section of the I-9 form by examining the documents presented by the employee that attest to their identity and employment authorization. The employer will record the document title, issuing authority, number, and expiration date, if applicable. Employers are required to physically examine each document to determine if it reasonably appears to be genuine and relates to the employee presenting it.

Section 3: Reverification and Rehires

For employees who are rehired within three years of the initial date of hire or whose employment authorization requires re-verification, Section 3 of the I-9 form must be completed. Employers will confirm that the previously employed individuals still have the rights to work in the United States and, if necessary, update the form with the new date of rehire and any new documentation if the original has expired.

For the I-9 Form, employers must accept valid documentation from employees to establish their identity and authorization to work in the United States. The documents are divided into three distinct lists: A, B, and C.

List A Documents: Proof of Identity and Employment Authorization

List A documents confirm both an employee’s identity and their authorization to work. Employees who present a List A document should not be asked to present any other documents. Examples of List A documents include:

• U.S. Passport or U.S. Passport Card
• Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
• Foreign passport with a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa
• Employment Authorization Document that contains a photograph (Form I-766)

List B Documents: Proof of Identity

List B documents exclusively confirm an employee’s identity. They must be accompanied by a document from List C for employment eligibility verification. List B documents include:

• Driver’s license or ID card issued by a U.S. state or outlying possession
• ID card issued by federal, state, or local government agencies
• School ID card with a photograph
• Voter’s registration card
• U.S. Military card or draft record
• Military dependent’s ID card

List C Documents: Proof of Employment Authorization

List C documents confirm employment authorization and, like List B, must be presented with a List B document for an employee’s identity. Example List C documents encompass:

• U.S. Social Security account number card
• Certification of report of birth issued by the Department of State (Forms DS-1350, FS-545, FS-240)
• Original or certified copy of birth certificate issued by a U.S. state, jurisdiction, or territory bearing an official seal
• Native American tribal document
• U.S. Citizen ID Card (Form I-197)

Employers are legally obligated to maintain accurate records of Form I-9 for each employee. These records must be stored properly and made accessible within specific time frames upon request.

Recordkeeping Requirements

Employers must have a completed Form I-9 on file for every employee, both current and past, who is under an obligation to fill out the form. For current employees, the form must be retained for the entire duration of employment. Once the employment ends, the employer must determine the retention period, which is either three years after the date of hire or one year after the date employment ended, whichever is later.

Storage Solutions

Form I-9 can be retained in different ways:

• Paper Format: Original forms with handwritten signatures may be kept on-site or at an off-site storage facility.
• Electronic Format: Employers can scan and upload the original signed paper forms and store them electronically.

Regardless of the method, forms must be retrievable within three business days of an inspection request.

Electronic I-9 Compliance

If an employer opts to use an electronic storage system, it must ensure that the system meets regulatory standards which include reasonable controls to ensure the integrity, accuracy, and reliability of the electronic generation and storage system. Employers who make electronic copies of supporting documents should maintain them alongside the Form I-9. The electronic system should also include:

• A method to index records to search for and retrieve them.
• A secure storage system that prevents unauthorized or accidental alteration or deletion.
• A record of any actions that create, modify, or archive the forms.

Audits and inspections of Form I-9 serve as mechanisms for ensuring compliance with employment eligibility verification requirements. Employers are subject to scrutiny by various governmental agencies to maintain integrity in the workforce.

Government Inspections

Government inspections are typically conducted by officials from the Department of Homeland Security (DHS), the Immigrant and Employee Rights Section (IER) at the Department of Justice, and the Department of Labor (DOL). During an inspection, employers must produce only the Forms I-9 and specific supporting documents requested by the inspecting officer. This may include copies of documents stored with Forms I-9 and associated audit trails detailing actions performed within or on the system.

Internal Audits

Employers have the right to conduct internal audits to review their Forms I-9 for compliance. Internal audits should be conducted periodically to ensure ongoing adherence to legal requirements. When reviewing Forms I-9, employers should be thorough and document the process to maintain a record of the audit’s scope and findings.

Correcting Errors

When errors are identified on a Form I-9, they can typically only be corrected in Section 2 or the Reverification and Rehire Section (formerly Section 3). Employers must:

• Ensure that corrections are made by drawing a line through the incorrect information, entering the correct data, and initialing and dating the correction.
• Not attempt to conceal any changes made to the form.

Conducting self-audits and correcting mistakes demonstrate an employer’s good faith effort to comply with employment eligibility verification laws.

In the context of the Form I-9, federal law sets forth robust anti-discrimination provisions to ensure fair employment practices.

Preventing Discrimination

Under the Immigration and Nationality Act (INA), employers are required to treat all individuals equally during the Form I-9 employment verification process. It is illegal for employers to have different rules or requirements based on an individual’s national origin, citizenship, or immigration status. Employers must refrain from committing unfair documentary practices, such as requesting more or different documents than are legally required to verify employment eligibility, based on these characteristics.

Penalties for Violations

Employers found to be in violation of the INA’s anti-discrimination provisions can face serious consequences. Penalties can include fines, civil lawsuits, and in some cases, debarment from government contracts. The Department of Justice’s Immigrant and Employee Rights Section (IER) is responsible for enforcing these anti-discrimination provisions and has the authority to impose penalties on offending employers.

Recent legislation and policy updates have introduced changes to the Form I-9, with implications for both current and future employment verification processes.

Recent Updates

The United States Citizenship and Immigration Services (USCIS) implemented significant updates to the Form I-9 on August 1, 2023. Employers may continue using the previous edition of Form I-9 until October 31, 2023. Thereafter, it becomes mandatory to use the newly revised form, which features a number of changes designed to simplify and streamline the employment verification process. Notably, Sections 1 and 2 have been condensed into a more efficient format. The preparer/translator section of the form now resides in a separate Supplement A, intended for use only when required.

Anticipated Changes

No additional changes to the Form I-9 have been officially announced beyond the current revision with an edition date of 08/01/23. Employers and stakeholders should monitor the USCIS website for any further developments or updates, as immigration policies and requirements are subject to change.

Impact on Employers

Employers must transition to the revised Form I-9 by November 1, 2023. Failure to do so may result in compliance issues and potential legal consequences. The updated form is designed to reduce paperwork and improve the verification process. Employers should review the changes thoroughly and update their internal processes to ensure seamless integration of the new form into their human resource practices. Additionally, they should be aware that the temporary I-9 flexibilities provided due to COVID-19 have expired as of July 31, 2023.