Form I-9 – Compliance, Audits and Common Mistakes

Every employer in the United States is required to complete an I-9 form for all employees and this must be completed within three business days of hire. The rule has been in effect since 1986 and only employees hired prior to 1986 are exempt from this rule.

Compliance – What is required to be compliant?

  •  The employer is responsible for filling out the I-9 form and verifying identity and authorization to work in the United States. The form must be completed within three business days and any employee who fails to produce the necessary documents within this time frame must be terminated. Instructions are provided on the back of the form as to how to complete the form and what are acceptable documents.
  • The employee may submit any of the documents listed in section A, B & C of the form as instructed. Employers may not ask for specific items such as a passport or green card.
  • Forms only need to be completed for applicants that are hired.
  • Employers can only accept original documents. The only exception is a certified copy of a birth certificate

Audits – When should files be audited and what are the rules for retention?

  • Employers must have a system in place to track documents that expire.  For example: Some green cards (Alien Registration Cards) expire after 10 years of issuance. In this case, a new card will have to be produced by the employee and a new I-9 will have to be completed on or before the expiration date. Larger companies use electronically generated reports to track these dates but a simple tickler system or use of outlook calendars can work for smaller organizations.
  • All non agricultural employers must retain an employee’s I-9 file for three years after the date employment begins or one year after the person’s employment termination, whichever is later. This simply means that you must maintain the files for as long as the person is employed and for one year after termination. However, please note that if the employee leaves before having been employed for three years, the employer must maintain the file for up to the minimum requirement of three years.
  • Internal audits should be performed semi annually as US Immigration sanctions for incorrect or missing I-9s can range from $110 to tens of thousands of dollars per infarction.
  • Anti-discrimination rules are also scrutinized during US Immigration audits, and employers can be fined for failing to hire authorized workers for discriminatory reasons. Examples of this would be asking for specific documents such as a US Passport or asking to see more than the minimum documents required.

Mistakes – Some frequent errors that can and will bring compliance fines and sanctions include:

  • Documentation errors, such as incorrect dates on the form, missing signatures, incomplete check boxes and, at times, failure to complete a form.
  • Non compliance of the three-day rule. This will happen mostly if the employee does not have the documents on the first day and the employer forgets to follow up.
  • Files with expired documents and those for which the employer has not completed re-verification.
  • Invalid documents that are requested on the form to validate identity and authorization to work.
  • Incorrect retention maintenance as discussed above.

As the Federal Government continues to tighten immigration laws and crack down on noncompliant employers, it is now the time for HR departments to train and educate staff on the rules and legal risks associated with this issue.  In addition, companies should implement accurate and consistent practices to prepare, maintain and dispose of I-9 forms, as this will minimize the likelihood of potential liability and violations.




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