Alex Halow, Mediator and Immigration Attorney

I-9 Compliance Basics:

All U.S. employers are required under the Immigration Reform and Control Act of 1986 (IRAC) to verify the eligibility of their employees to work in the U.S. In order to comply with the IRAC, employers must complete a "Form I-9" for each and every employee whom they hire. The Form I-9 has three sections:

• Section 1, Employee Information and Verification;



• Section 2, Employer Review and Verification; and
  
  
• Section 3, Updating and Reverification.

Section 1 is typically completed by the employee and must be signed by them. It requires the employee to state whether they are a U.S. citizen, a U.S. legal permanent resident, or otherwise have permission to work in the U.S. If Section 1 is prepared by another person or with help from a translator, that person must sign a special certification on the I-9. Section 1 must be completed at the time of hire, which is the actual beggining of employment.

Section 2 is completed by the employer, and must be signed by the appropriate employer representative. The employer must review certain basic documents to establish both the employee's identity, and that they employee is authorized to work in the U.S., and include information about those basic documents in Section 2. Certain documents (from "List A") establish both the identity and employment eligibility of the employee; other documents establish either the identity ("List B") or employment eligibility of the employee ("List C"). The employer must verify that the employee either has a single List A document or one from each of List B and List C. Section 2 must be completed before the end of the employee's third day of employment.

Section 3 can be used in at least two circumstances, "updating" and "reverification". Updating can occur when an employee has a name change, or leaves a company, then returns during the period of time the employer is required to retain their I-9. In that situation, rather than completing a new I-9, the employer can "update" the Form I-9 using Section 3, rather than having the employee complete a new Form I-9. Reverification, on the other hand, is required whenever the employee is relying on a document with a set expiration date (such as a temporary work permit) to show that they are eligible to work in the U.S.

Employers have the option of whether or not to retain photocopies of the documents they are relying on to complete the Form I-9. The Form I-9 can also be maintained digitally. The employer is required to retain the Form I-9 for as long as the employee works for them. If an employee leaves, the employer must retain the I-9 Form until the later of: (a) three years after the employee's initial hire date; or (b) one year after their termination date.

Although complying with Form I-9 requirements appears simple, it is easy for employers to fall into a pattern of not competing I-9 forms correctly, not maintaining completed I-9 forms for the required length of time, and a variety of other technical mistakes. Unfortunately, if the employer is ever audited for compliance by U.S. Immigration and Customs Enforcement ("ICE") or the U.S. Department of Labor ("DOL"), technical violations can result in thousands and thousands of dollars in civil fines. Even worse, in the event that the employer has any employees on staff who are not eligible to work in the U.S., the fact that the employer has not been complying with I-9 requirements can lead to a presumption that the employer has been employing those individuals knowingly and willfully.

Beyond that, there are a host of situations that can arise that can be difficult to resolve and put the employer in the uncomfortable position of balancing between its obligations under immigration law and the rights of the employee. For example, the employer may receive a "social security no match" letter from the social security administration, questioning a social security number provided by an employee. In that situation, the employer would be expected to take action to resolve the "no match" letter, but it would not be appropriate for the employer to simply assume that the employee was not eligible to work in the U.S.

An employer's best defense against possible problems with its I-9 compliance programs is to perform a thorough review and "self-audit" of its policies and procedures. By being proactive and taking action sooner, rather than later, the employer can avoid problems when and if it is ever exposed to an audit by either ICE or DOL. It will also put the employer in a much better position in the event that it is required to certify that it is complying with the employment eligibility verification requirements of immigration law by any of its customers (something that appears to be a growing trend in many industries).

The information on this web site regarding mediation, immigration compliance, family based immigration, or any other legal matter is general, and cannot be substituted for legal advice.