Since 1986, all U.S. employers have been required to verify the work authorization and identities of all new workers within three days of hire with Form I-9 Employment Eligibility Verification, which should be completed for every employee hired within a very strict timeframe.  Proper I-9 execution is complex, as this 2-page form is explained by a handbook over 100 pages long.

Retain an immigration attorney to instruct your HR department on how to properly intake employees or even provide onsite assistance with the I-9 process for new employee intakes.  Attorney assistance is highly encouraged in this age of increasing immigration enforcement.  All attorney assistance is confidential and protected by attorney-client privilege.  Most companies do the bare minimum in regards to I-9 verification and make mistakes: incorrectly filled forms; improper filing and retention practices; dangerous employee intake inquiries, etc.  Having an attorney guide the process, and including audit records with your I-9 file will ensure that you are compliant.

Employee Intake:

Form I-9 is split into three sections: Section 1 is for the employee to fill out; Section 2 is for the company to indicate which forms were presented to prove identity and work authorization, and; Section 3 is for rehires or reverification of pre-existing employees.  Your immigration attorney can advise your company’s HR department on how to fill in these sections properly to avoid an errors in the I-9 process.   A thorough I-9 audit is highly recommended and will reveal errors and provide guidance on corrective measures.  Errors in the I-9 can be minimized by following some basic rules when executing this form for each employee, discussed below section by section.

Section 1 of the I-9 is only to be filled in by the employee, and no later than during the first day of employment.  The employer should not even perform revisions to this section.  Also, the employer should not do the certification process in Section 2 until section one is properly completed by the employee.  Ensure that all legal names are used, even if there are multiple first and last names.  Make sure the employee writes their birthday in the (mm/dd/yyyy) format.  Any sections intentionally left blank in Section 1 should be filled with “N/A.”  Note that the employee has the option to leave out their social security number, unless the employer is enrolled in E-Verify in which case the social security number is mandatory.  Also make sure the employee’s attestation of status is Section 1 is proper in light of the documents they present.  For example, an employee who presents a Green Card but checks the box for U.S. citizen has filled that section improperly in a way that could be considered a substantive violation (false claim to U.S. citizenship).  After Section 1 is reviewed for accuracy (on the first day of hire, of course) should the employee sign and date Section 1 so that the employer can begin the process of document review for Section 2.

Section 2 of the I-9 is to be filled in by an authorized company representative after Section 1 is completed by the employee.  Section 2 has three columns that are used to indicate which document(s) the employee chose to present.   Column A is for documents that prove both identity and work authorization.  Common examples include: U.S. Passports, unexpired Permanent Resident cards, Employment Authorization Documents with photograph, and others.  Alternatively, employees can provide two documents: one from Column B for identity, and one from Column C for work authorization.  Common documents for Column B include driver’s licenses or military ID.  Common documents for Column C include unrestricted Social Security cards or U.S. birth certificates.  Note that Social Security cards are only acceptable if unrestricted, meaning they cannot be used for I-9 purposes if they are annotated as “not valid for employment,” or “valid for work only with DHS/INS authorization.”

Note that if an employee presents an acceptable Column A document, the inquiry should end and no other documents should be requested of the employee or documented on the I-9.  Asking for more documents than the I-9 requires can be evidence that an employer has performed employment discrimination.  Also, employers should only record and retain copies of the necessary documents even if an employee voluntarily provides more than necessary.

Section 3 of the I-9 is for rehires and reverifications, and even name changes.  Fill in Section 3 for rehires when an employee is terminated then returns to the workforce within three years of the original I-9.  Employers will need to recheck documentation for employment authorization of the previous employment authorization is noted to expire in the I-9.  This is also the case when Section 3 is used for reverification of an existing employee’s work authorization.  This should be calendared so that the employer is ready to perform reverification as soon as an employee’s previous work document expires.  Section 3 reverification is never necessary for U.S. Citizens or Permanent Residents whose work authorization is without expiration.  Lastly, employers have the option to use Section 3 to record an employee’s legal name change upon marriage, adoption, etc.

Corporate policy on I-9 retention should be tailored to be posture a company in the off-chance of a government enforcement visit (raid, audit, inquiry, etc.).  For example, I-9s should be stored separately from other personnel files. Companies consistently make two mistakes in how they store I-9s: (1) they store them together with other personnel files, and (2) they keep more I-9s than are necessary.

Keep in mind, the purpose of proper I-9 retention is minimize company liability in the off-chance the government chance that the company office is subjected to an enforcement visit.  Agents will demand access to and collect the I-9s in the office, and if I-9s are mixed in with other employee records then the government will have access to these as well.  Personnel files often contain private employee information such as healthcare, medical, or social assistance information.  If the enforcement is based on civil rights violations then the extra documents could be used as evidence that the employer violated anti-discrimination laws by way of having more documents then necessary.  If the enforcement is based on knowingly hiring unauthorized employees, the government could use the extra documentation as evidence that the employer had knowledge of an employee’s lack of authorization.

In addition to storing I-9 files separately, employers should also destroy I-9s once they are older than the legal retention requirements.  Employers must retain I-9s for every employee until the later of:

  • three years after the date of hire, or;
  • one year after the date terminated.

Employers can store I-9s on paper or electronically.  They can also choose whether or not to retain scans of the documents accepted for I-9 verification, and are encouraged to do so as long as they apply this policy consistently throughout the workforce.

 

Anti-Discrimination:

The I-9 process requires employers to ensure the work authorization of every individual without inquiring or implying any preference to nationality or country of origin.  As such, there is a prohibition on requiring specific documents beyond that which is required by the I-9.  Further, some questions, such as directly asking a candidate about his/her nationality or immigration status, could leave an employer open to liability for violations of the antidiscrimination provisions of the Immigration and Nationality Act.  Rather, a safe corporate policy for those concerned about the expense of immigration sponsorship is to ask this preliminary question of all candidates for employment: “are you authorized to work in the U.S. or will you require employment sponsorship?”  There are several similar nuances that an HR department should be aware of in their personnel practices.

 

E-Verify:

Many employers are unclear about the interplay between the Form I-9 and the government’s E-Verify platform, in which the government compares identification credentials against Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to verify the authenticity of documents presented by candidates.  To be clear, the Form I-9 is required by federal law, while E-Verify is not strictly required.  Most states, with  exceptions, do not require E-Verify participation unless you are a public employer or contractor.  Contact your immigration attorney to learn more about state-specific requirements. But private employers can still opt into the program.  But beware that once a company voluntarily opts in to E-Verify then its participation becomes mandatory going forward.

Confer with your immigration attorney about whether or not to participate (and if you are allowed the choice).  This assessment will take into consideration the size of your company, the industry, any violation history, nature of the workforce, and the pros and cons of the E-Verify as it relates to your specific circumstances.

The potential benefits of enrollment in E-Verify are as follows:

  • Decreases the likelihood of “no-match” letters from the SSA indicating that the employees name and social security number do not match;
  • For employers hiring recent graduate trainees with STEM degrees (Science, Technology, Engineering, Mathematics), registration in E-verify is required in order to exercise the option to extend the trainees’ work authorizations for an additional 17 months;
  • Participating in E-Verify is not a safe-harbor, but provides a rebuttable presumption that the employer has not “knowingly hired” an unauthorized worker.

The burdens of enrollment in E-Verify are as follows:

  • Enrollment requires employers to sign an MOU with the government that can be changed without notice and yet remains binding;
  • Enrollment will naturally incur training and implementation expenses as the HR department learns the new processes;
  • Increased government scrutiny: enrollment expressly allows audits, including employee interviews;
  • Increased exposure to discrimination litigation for false negatives. In other words, if the E-Verify program mistakenly rejects a candidates’ documents and the employer is too zealous in terminating the employee, the liability remains with the employer;
  • Stricter I-9 requirements:
    • Must enter employee’s social security number;
    • Can only complete I-9 using identity documents with a photograph.

 

 

See Also