13 tips for better I-9 compliance

In November 2016, the U.S. Citizenship and Immigration Services (USCIS) released an updated “smart” version of the Employment Eligibility Verification Form I-9 (“I-9”). As of Jan. 22, 2017, all employers were required to begin using the updated form for new hires in the paper or fillable PDF version. Current employees who have already completed an I-9 upon hire do not need recomplete the new Form I-9. It is only for employees hired on or after Jan. 22, 2017.

Along with the new form, the USCIS issued 15 pages of revised instructions for completing the new I-9 (nearly double the size of the former version) and a new handbook for employers. The instructions are informative and useful for anyone responsible for ensuring proper completion of I-9s.

The new I-9 is considered a “smart” form because it is available in a fillable PDF format that includes real-time error checking notifications, validations for specific fields, drop-down lists and calendars, and hover text instructions. These changes were designed to minimize common technical errors that often occur when completing the form.

Although the new Form I-9 can be completed and retained electronically, it does not meet the technical definition of an “electronic I-9” under Department of Homeland Security (DHS) regulations. Because of this, if the PDF version is used, a hard copy must be printed and signed by both the employee and the authorized employer representative who verifies the original identifying documents.

I-9 compliance refresher

With increased immigration enforcement on the horizon, now is a good time for employers to self-audit I-9s for current employees and to ensure that I-9s for new hires are being completed properly.

Here are some important tips to help enhance compliance.

Section 1 of the I-9 must be completed by the employee at “the time of hire.” The phrase “time of hire” is defined by USCIS as the period of time after the job offer has been accepted and before the end of the employee’s first day of active employment.

Section 2 of the I-9 must be completed by the employer within 3 business days of the date of hire. (The term “hire” means the beginning of employment in exchange for wages or other remuneration. Based on this definition, the “date of hire” means the first day of work for pay.)

Employees who are rehired within three years of the date of their previous I-9 do not need to complete a new I-9; however, Section 3 of the previous I-9 must be completed.

Reverification of List A and List C documents is never required for U.S. citizens, noncitizen nationals, or lawful permanent residents who presented a Permanent Resident Card (Form I-551). Reverification does not apply to List B documents.

I-9s should not be completed by independent contractors.

The 15-page instruction document and List of Acceptable Documents (page 3 of the Form I-9) must be made available to employees (in print or electronically) at the time they complete Section 1 of the form.

The I-9 is available in Spanish; however, only employers in Puerto Rico may use the Spanish version. Employers in the United States may use the Spanish version as a translation guide for Spanish-speaking employees.

Employees are free to choose which documents they submit to establish their identity and eligibility to work in the U.S. Documents that reasonably appear to be genuine must be accepted. Employers may not ask employees to provide specific documents (such as a Social Security card) for I-9 purposes. To do so may constitute unlawful discrimination.

Employees must present original, unexpired documents in the physical presence of the company representative completing Section 2 of the I-9. The documents must include either one document from List A or one document from List B and one from List C. The List B document must contain a photograph if the employer participates in the E-Verify program.

Employer representatives who physically examine List A, B, and C documents in the employee’s presence must complete Section 2 in its entirety, including the full name of the document (or the common abbreviation), the issuing authority, the document number, and the expiration date. The employer representative must sign the Certification in Section 2, which is an official government affidavit attesting under penalty of perjury that he or she examined the documents, they appear to be genuine and to relate to the employee named, and to the best of his or her knowledge, the employee is authorized to work in the U.S.

For employers who do not participate in the E-Verify program, photocopying original documents presented by employees is voluntary. If an employer elects to photocopy documents, to minimize the risk of a discrimination complaint based on citizenship status, immigration status, or national origin, this practice should be applied consistently. Section 2 of the I-9 must still be completed by employers who elect to photocopy original employee documents.

I-9s should be stored in a secure location separate from personnel files. If photocopies of documents are made, they should be retained with the I-9s and presented during an investigation or audit by an authorized agency.

Completed I-9s must be retained for as long as an individual is employed. I-9s for employees who have separated must be retained for 3 years after the date of hire (first day of work for pay) or 1 year after the date employment ends, whichever is later.

Failure to comply with regulations pertaining to employment verification and proper completion and use of the updated I-9 can result in serious consequences. As of August 1, 2016, fines associated with mistakes and/or omissions on an I-9 and failure to make I-9s available for inspection have increased 96 percent, from a minimum of $216 (formerly $110) to a maximum of $2,156 (formerly $1,100) per violation. Penalties for discriminating against immigrant workers and violating visa-related requirements have also increased.

The best way to minimize liability is to conduct periodic audits of I-9s and, when necessary, to follow USCIS’s specific procedures for correcting errors or omissions. Audits should be conducted by someone who is knowledgeable about immigration and I-9 requirements and USCIS rules. If you haven’t conducted an I-9 audit lately, now is the time to dust off your forms and start the inspection process.

Jean Seawright is president of Seawright & Associates, a management consulting firm located in Winter Park, Florida. Since 1987, she has provided human resource management and compliance advice* to employers across the country. She also consults with employer-members of trade associations, including, among others, The Garden Center Group. She can be contacted at 407-645-2433 or jseawright@seawright.com. (*The information in this article is not legal advice. For legal advice, readers should consult with an attorney.)