by Denise Garman, SPHR
All United States employers must complete Form I-9 to document that they have verified the identity and authorization to work in the United States of each new employee (both citizens and non-citizens) hired after November 6, 1986. Both the employee and employer or the employer’s authorized representative, must complete the form.
With this obligation comes many compliance requirements that employers must be aware of to avoid serious fines or penalties.
Completion of Form I-9
Employers should ensure that they and their employees have filled out every field on the I-9. Having someone trained in the completion of Form I-9s, like a member of human resources, sit with the employee while they complete it is a best practice, if feasible. This includes making sure the form is signed and dated by the employee in Section 1, completing the employee’s hire date in Section 2, and employers signing and dating Section 2. These fields on the form are the ones most often missed or completed incorrectly.
Section 1 must be completed before the end of the employee’s first day of employment. Section 2 must be completed before the end of the third day after the first day of employment. Therefore, if the employee is hired on Monday, Section 2 must be completed before the end of the day on Thursday.
Acceptable Documentation
Employees must present their documents within 3 business days of starting work. Therefore, if an employee starts on Monday, they must present their documents on or before Thursday of that week and Section 2 of the form must be completed on or before Thursday.
Page 3 of Form I-9 outlines what the acceptable documents are that an employee can provide to verify their identity and authorization to work. An employer cannot dictate which forms from the lists that the employee must provide. Employers must carefully inspect the documents to ensure they are not fraudulent, such as a fake lawful permanent resident or Social Security card. Employers must not accept a restricted Social Security card from an employee that says, “Not Valid Without DHS [Department of Homeland Security] Work Authorization.”
When completing Section 2, the employer must ensure they record the document properly on the form, noting the document title, issuing authority and expiration date. The employer may choose to make copies of the documents the employee presents, but it is not required. The individual who physically examined the documents must be the one signing the attestation under penalty of perjury in Section 2.
Reverification
The employer should record the I-9 expiration date for employees with a work permit (an employment authorization document) or a work visa, but it should not keep I-9s in employees’ HR files.
For example, employers must reverify that a foreign national is authorized to work beyond the original expiration date by examining new work authorization documents. If an organization does not have a process to track the expiration dates, it will fail to reverify and open itself up to potential fines or penalties.
Updating Virtually Completed Form I-9s
Since March 20, 2020, during the pandemic, U.S. Immigration and Customs Enforcement (ICE) gave flexibility to organizations regarding the completion of Form I-9, allowing employers to inspect documents virtually. That flexibility is ending July 31, 2023, with a 30-day grace period to comply with physical Form I-9 document inspection again.
This also means that if an employer was completing the Form I-9 process virtually over the last three years, they are required to conduct a physical inspection of the original documents related to those Form I-9s by the August 30, 2023 deadline.
As with any project of this nature, it is important to have a documented plan regarding how the employer will ensure compliance. Some suggestions to follow:
- Identify all the Form I-9s requiring updates (hopefully, your organization has been tracking the Form I-9s the employer completed virtually over the past 3 years.)
- Communicate with the applicable employees about the need to inspect their original documents and by when outlining the consequences if they fail to cooperate.
- Decide whether the physical inspection of documents will be done in-house, or if the employer will use a third-party authorized representative to complete in-person inspections.
- If doing it in-house, train those employees who will be doing the physical inspection of the documents, so they know what documents are acceptable and how to update Form I-9. NOTE: Employees can present their choice of eligible identity and work authorization documents when updating the forms. They do not need to present the same documents they initially presented. As a reminder, Form I-9s that were virtually completed should have been annotated in the Additional Information field with “COVID-19.” This must be updated by noting “documents physically examined” with the accurate date and the name of the person who conducted the review in Section 2 of Form I-9.
If your organization uses an electronic Form I-9 completion process the employer should work with your vendor to understand how to identify remote COVID Form I-9s in the system, confirm a workflow exists to update these remote COVID Form I-9s with a physical inspection, and ensure the system tracks the completion of updates to remote COVID Form I-9s.
Retention and Purging of Form I-9
If an employer is ever subject to an investigation or audit of their Form I-9s, ICE will give only three business days for the employer to produce Form I-9s and any associated documentation. Given this quick turnaround employers will want to ensure that the retention of their Form I-9s is always kept up to date. This includes purging old Form I-9s that are no longer required to be retained, as employers do not want ICE to consider those as part of any review in the event that it may open them up to penalties or fines.
Form I-9s must be retained either one year after the date of termination or three years after the date of hire, whichever is later. Therefore, the retention period comes into play once an employee has been terminated. Employers should always have a Form I-9 on file for all current employees. And in some cases, an employer may want to retain the Form I-9 for a terminated employee due to open litigation.
As examples,
- An employee who worked for an organization from 2007 to 2021, has been gone greater than one year, therefore their Form I-9 can now be purged.
- An employee who was hired in 2020 and is still actively working, must have their Form I-9 retained.
- An employee who was hired in 2021 and terminated in 2022, can have their Form I-9 purged in 2024. In this example, the three years after date of hire is the later date, rather than their date of termination.
When purging and destroying Form I-9s employers should use a secure document destruction process given the personal and sensitive information contained on a Form I-9. Using a cross-cut shredder or a vendor who specializes in this type of document destruction is recommended.
If an employer stores Form I-9s electronically, they should also be purged using a secure process that prevents the information from being recovered later.
If an employer purges a Form I-9 in error, they need to complete a new one with the employee as soon as possible. Even doing so could still mean potential liability for completing the form late. However, keeping good documentation on what occurred is critical so that the employer can explain the situation to ICE, in the event of an audit or investigation. Employers can face penalties as high as approximately $2,300 per I-9 on average for missing, late, or incomplete Form I-9s.
Form I-9 and other related documents can be found by visiting the ICE website at this link:
If your organization needs guidance on the Form I-9 process or assistance with auditing your forms, please reach out to Hubric Resources to discuss how we can help.
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