Charting the I-9 Process

Charting the I-9 Process: Ensuring Compliance the Right Way

Presented by The Orsus Group HR Services

Most employers today are aware of Form I-9, the employment eligibility document they are required to complete for every employee hired in their workplace. And most employers probably think I-9 compliance is a rather straightforward and simple thing.

But government enforcement statistics tell a different story. There were over 3,000 Immigration and Customs Enforcement (ICE) audits conducted in 2012 from which $12.5 million dollars in fines were issued to employers found to be out of compliance with the I-9. Additionally 240 company managers/owners were arrested for knowingly employing unauthorized aliens. Obviously there’s more to the I-9 than meets the eye, to coin a phrase.

Purpose of I-9 – Form I-9 is a 9 page document (which itself includes 7 pages of instructions) that employers must complete to document the identity and employment authorization of every new employee hired, whether full or part- time, regular or temporary. Form I-9 is made up of three sections, all of which cumulatively must be completed no later than three business days following the date of hire. The completed I-9 must be maintained for the longer of a) one year after the employee leaves the employ of the company or 3) three years from the date of hire.

Section 1) Employee Information and Attestation – New employees must complete and sign Section 1 of the form no later than the first day of employment, but not before they have accepted the employer’s offer of employment. The purpose of Section 1 is to provide the new employee’s basic personal information — name, address, birth date (social security number is optional) — along with his or her employment eligibility status in the United States. To that end, the employee must check whether he or she is

• a citizen
• a noncitizen national
• a lawful permanent resident, or
• An alien authorized to work in the U.S.

An alien authorized to work whose authorization expires must record the date of expiration, which will be a key date for employer follow-up. If an expiration date applies, the employee should include his or her Alien Registration/USCIS Number or Form I-94 Admission Number, as applicable.

Section 2) Employer or Authorized Representative Review and Verification – This is the part of the I-9 in which the employer reviews documentation presented by the new employee which must establish the employee’s identity and employment authorization. Sometimes both identity and employment authorization can be established by one document, such as those shown under List A of the Lists of Acceptable Documents on page 9 of the form. Sometimes, however, it will require two documents: one that establishes identity under List B plus one that sets forth Employment Authorization under List C.

For example, a Passport or Permanent Resident Card are documents which fall under List A which establish both identity and employment eligibility. A Driver’s License or School ID under List B establishes only identity and would have to be shown in conjunction with a document from List C, such as a Social Security Card or Birth Certificate.

Employers are not expected to be experts in determining genuineness of documents. The employer must only certify that the document appears to be genuine such that the employee is authorized to work in the U.S. The employer may not specify which document has to be presented, but must accept any allowable documentation which proves identity and employability. Under certain circumstances, as elaborated upon further on the I-9 Form and in the Handbook, a receipt in lieu of a document may be accepted on a temporary basis.

To complete Section 2, the employer must note each document presented, filling out the document title, issuing authority, number(s) and expiration date (if any) from the original document(s). The employer must make sure to enter both the employee’s first date of employment and the date which the employer examined and approved the documentation which may, of course, be different dates.

Section 3) Re-verification and Rehires – When an employee’s employment authorization as indicated in Section 1 and/or on the document he or she has produced under List A or C is set to expire, the employer uses Section 3 for updating and re-verification. The employer must examine and provide information regarding the new document that extends the employee’s employment eligibility. Section 3 may also be used when a former employee is rehired within three (3) years of the date the form was originally signed.

So that’s the basics of every employer’s obligation pursuant to Form I-9. It may be simple to state, but often complicated in practice with multiple documents, multiple dates, and multiple requirements every time an employee is hired and/or re-verified.

How to ensure that you don’t end up in a mess during an audit should ICE come to your door? The best way is by adopting good solid consistent I-9 practices and effective self-auditing techniques.

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