Form I-9s—Still a Hassle and Audits Are Heating Up

Immigration is a hot issue, and that means increased scrutiny of Employment Eligibility Verification Forms (more commonly known as a Form I-9). Attorney Roger Tsai clarified employer responsibilities at BLR’s Advanced Employment Issues Symposium held recently in Las Vegas.

IRCA’s Requirements

The Immigration Reform and Control Act of 1986 (IRCA) requires every employer to complete and retain  Form I-9 for all new employees and current employees hired on or after November 6, 1986, who will perform work for pay or other compensation, says Tsai, who is Of Counsel in the Salt Lake City office of Holland & Hart LLP.

The purpose of the Form I-9 is twofold:

  • Verify the identity of each person hired.
  • Verify his or her authorization to work in the United States.

The form is from the U.S. citizenship and Immigrations Services (USCIS), which is part of the Department of Homeland Security (DHS). Enforcement of the rules is by the U.S. Immigration and Customs Enforcement (ICE), which is the investigative arm of the DHS.

Completing I-9 Forms

First of all, says Tsai, be sure that you are using the revised form that has been mandatory since May 7, 2013.

  • Section 1 is completed by the employee no later than the first day of employment. (A translator may assist.)
  • Section 2 is completed by the employer no later than the third day after employment begins. If this doesn’t happen, the employee cannot continue to work.
  • Section 3 is completed if the employee’s authorization expires.

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Retention of Form I-9s

You must keep  Form I-9 for 3 years after the date of hire or 1 year after the employee terminates, whichever is later.

You must be able to produce the forms within 3 days of an official request for production.

Forms may be kept in individual personnel files, but it is probably best to keep all the I-9 forms together in one file. ICE recommends separate files. Tsai recommends that employers keep I-9s in two binders, one in alpha order for current active employees, and one for former employees by date of termination.

Forms may be kept electronically if the employer has a system that:

  • Controls integrity and accuracy;
  • Prevents and detects modifications;
  • Tracks access;
  • Has a retrieval system that includes indexing and searching; and
  • Has the ability to reproduce legible and readable hard copies.

Note that some of this can be tricky with pdf documents, Tsai, warns.

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After insuring that the electronic copy accurately reproduces the original, you may shred the original. If it does not, retain the original, says Tsai.

Some vendors offer websites that will maintain your I-9 forms. That can be helpful as these sites generally won’t let you submit incomplete forms, and they will send notifications reminding you of the 3-day deadline, for example.

The DHS conducts 2 to 3 thousand audits annually, says Tsai, and about one-third of the audits result in fines, ranging from $30 to $100,000. The biggest threat is a determination that you knowingly hired an ineligible employee.

In tomorrow’s Advisor, the nine most common Form I-9 mistakes, plus an introduction to the all-things-HR-in-one-place website,®.