All U.S. employers are required to comply with the federal regulations requiring verification of the employment eligibility of all workers. Verification is made by having every employee complete a Form I-9 (Employment Eligibility Verification Form).  Failure to complete the process can result in fines levied against an employer, and in cases involving willful refusal to comply, criminal charges can be brought against the individual(s) within the company responsible for compliance.

In the past, Immigration and Customs Enforcement (or ICE, formerly known as the INS) limited its enforcement sanctions to relatively small fines; however, this is no longer the case.  Under the Obama administration, the ICE has established a practice of significantly increasing the number of I-9 audits performed and of levying substantial fines on companies that fail to comply with federal regulations.  According to testimony provided by Secretary Napolitano to a U.S. House of Representatives Committee, since 2009, the ICE has conducted more than 6,000 I-9 audits of U.S. employers and issued more than $75 million in fines.  Therefore, the risks for non-compliance are potentially costly.

Answering the Five Big Questions (Who, What, When, How & Where) To Form I-9 Compliance

Who needs to complete a Form I-9? – To remain in compliance with the federal regulations, all employees are required to complete a Form I-9 and provide eligibility documentation, no matter how short the term of employment.  If an employee is going to be paid, even if only for one day of work, an employer must complete the form and verify the worker’s documents.  This includes both regular and temporary personnel who are to be given W-2 forms at the end of the year as well as “day workers” who are paid immediately.  Only independent contractors are exempt from the requirement of completing a Form I-9.

What documents can be used to verify employment eligibility? – Employers may not specify which documents or combination of documents an employee submits to comply with employment eligibility requirements.  Rather, an employer must accept any lawful document or combination of documents specified on the Form I-9.  It is the responsibility of the person completing the Form I-9 on behalf of the employer to confirm that the documents presented match the employee.  It is important that the reviewer record all file number(s) and validity period information shown on documents provided by the employee.

When must an employee complete a Form I-9? – Section 1 (Employee Information and Verification) of Form I-9 must be executed on the day that an employee begins work.  In this section, the employee declares whether he or she is a U.S. citizen, lawful permanent resident, or nonimmigrant authorized to accept employment.  The employee MUST execute and sign this portion of the form BEFORE starting work.  The remainder of the form (Section 2) must be executed and signed within three (3) business days of the start of the worker’s employment with the employer. 

How Does An Employer Complete the I-9 Process? – Section 2 (Employer Review and Verification) of the Form I-9 can be completed by a HR Representative or the on-site person responsible for management of the location where the new employee is assigned.  The designated company representative must personally review and verify the documents presented by the worker to comply with Section 2 of the form within three business days of the date of hire.  One exception to this rule would be for employees who are expected to work less than three days, in those situations Section 2 must be completed on the date of hire. 

Where Should Form I-9 Documents Be Kept? – It is recommended by the U.S. Citizenship and Immigration Service (USCIS) that employers keep completed Form I-9s separated from employee’s regular personnel file.  Further, forms for terminated employees should be kept in a separate file from active employees.

The USCIS does not provide a definitive answer on the question often asked, which is “should I make a copy of the documentation presented by the employee to keep in the file?” Therefore, it is up to the employer to decide if copies are made and maintained in the I-9 Folder.  However, consistency is vital.  Should copies be made of the documents provided by one employee, it is required that they be made for all employees. 

A Bonus “W”:  When Should Form I-9s Be Discarded? – For former employees, the employer should destroy all I-9s when the present date is more than three years since the date an employee was hired and one year from the date of termination of employment. 

Some Last Thoughts 

Given the increased number of audits being performed by the ICE, it is recommended that all employers establish an I-9 Compliance Plan and complete a review of their I-9 files every six months to assure that records are up-to-date.  This review should include verifying that forms are completed for all employees, required information is current (particularly checking dates of expiring work visas) and forms for terminated employees are purged from the files.  The establishment of a plan and review process prior to an audit request from the government may go a long way in reducing any potential fines or criminal prosecutions that can be levied if violations are found.

Lastly, if a Notice of Inspection or Audit Request is received, it is recommended that you notify counsel as soon as possible, given the potential for substantial fines and/or criminal charges.   It is critical that all documents gathered in response to the Notice are reviewed thoroughly, are well-organized, and are presented in the best light possible.

Ann Kontner is a former senior human resources executive with vast experience in all facets of the HR field. She brings to S&J over 25 years of HR experience in corporate compliance, administrative management, staff development and executive leadership skills. She has worked for a wide range of employers including both public and privately held corporations, federal government contractors, and has experience working in both domestic and international markets.
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