How Your Business can Ensure I-9 Compliance

Since the new U.S. administration is expected to focus on increasing employer compliance with immigration regulations and potentially increase Form I-9 investigations and enforcement it is critical for U.S. employers, who have hired or plan to hire foreign nationals, to ensure compliance. Therefore, understanding Form I-9 employment verification requirements for foreign workers is more important than ever.

As background if you are a new business who is about to hire employees - Form I-9 is a critical employment verification tool as per the 1986 Immigration Reform and Control Act (IRCA) that helps verify whether individuals are authorized to work in the United States.

Any form of an employer knowingly hiring individuals who do not have work authorization may subject it to civil and/or criminal penalties.

To comply with employment eligibility verification provisions an employer must:

• Verify the identity and employment authorization documents of employees hired after November 6, 1986
• Complete and retain a Form 1-9 for each employee hired after November 6, 1986
• Refrain from discriminating against individuals on the basis of actual or perceived national origin, citizenship or immigration status

Form I-9 Must be on file for all current employees:

• Store Forms I-9 securely in a way that meets your business needs – on site, off-site, storage facility or electronically.
• Store Forms I-9 and document copies together.
• Ensure that only authorized personnel have access to stored Forms I-9.
• Make Forms I-9 available within 3 days of an official request for inspection. 

The government allows two ways to retain Form I9:

1. Store Form I-9 for 3 years after the date an employee is hired OR
2. Store for 1 year after the date the employer or the employee terminates employment, whichever is later.

The ICE provides guidance on how to identify the retention date:

• an employer can identify the retention date by adding 3 years to the hire date and 1 year to the date employment was terminated. The date that is later is the retention date.

Form I-9 is periodically updated and the U.S. Citizenship and Immigration Services ("USCIS") provides a variety of resources to assist employers with completing Form I-9 as well as staying up-to-date on changes to the process.

Specifically, there is a dedicated web site called I-9 Central that includes access to the "Handbook for Employers," which provides detailed information on how to complete the I-9 form for foreign workers. An employer can also sign up for regular email updates and teleconferences via this web site.

Employers can institute a practice of self-auditing their Form I-9 records in order to review and edit their records at any time (the ICE provides the following guidance: " Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits") . Such self-audits will assist the employer with identifying common errors that can be found and corrected.

Additionally, an employer can take steps to train personnel in charge of Form I-9 completion and maintenance to ensure correct completion and retention of Form I-9 records. Such training should include an overview of typical employment authorization and identity documents held by foreign workers, so that personnel in charge can recognize some standard situations and also be alerted to any situations that may require further scrutiny.

Taking steps to ensure that you and/or personnel in charge of Form I-9 completion and maintenance understand: a) how to complete Form 1-9, b) stay informed of changes and updates and c) receive training, will greatly assist your business in ensuring ongoing Form I-9 compliance.

Reference: U.S. Immigration and Customs Enforcement (https://www.ice.gov/)

Reference: Inside Counsel, January 24, 2017 article: "3 Tips for Small Businesses to Avoid I-9 Violations When Hiring Foreign National Employees" (By: Dina Weinstein)

*The material in this publication should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.