Employment Eligibility Verification Compliance - Form I-9 – What Employers Need to Know

The Immigration Reform and Control Act (IRCA) was enacted in 1986 to help control illegal immigration. IRCA forbids employers from knowingly hiring individuals who do not have work authorization in the United States

All employers are required to complete and retain a Form I-9 for each employee after hired November 6, 1986. The Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States.

It is illegal to discriminate in the employment eligibility verification process based on an individual's citizenship status, immigration status or national origin. Employers CANNOT specify which document(s) the employee may present to establish employment authorization and identity. The employer must allow the employee to choose the document(s) to be presented from the Lists of Acceptable Documents, found on the last page of Form 1-9. The refusal to hire or continue to employ an individual because the documentation presented has a future expiration date may constitute illegal discrimination.

Employers must use the current Form I-9 07/17/17 N OMB No. 1615-0047, which expires on 08/31/2019. They also must provide the new hire with Form I-9 instructions.

Both employers and employees are responsible for completing their respective sections of Form 1-9. An "employee" is a person who performs labor or services in the United States for an employer in return for wages or other remuneration. The term "Employee" does not include those who do not receive any form of remuneration (volunteers), independent contractors or those engaged in certain casual domestic employment. Form 1-9 has three sections.

Section 1 – Employee Information and Attestation

Newly hired employees must complete and sign Section 1 no later than the first day of employment. Section 1 should never be completed before the individual has accepted a job offer.

If a preparer or translator helps the employee, they must provide his or her name, address and must sign and date the form.

Section 2 – Employer or Authorized Representative Review and Verification

Employers complete Section 2 within 3 business days of the new hire starting work for pay. The new hire must present documentation that establishes identity and employment authorization. The employer reviews the document(s) and completes and signs the form.

Section 3 – Reverification and Rehires

Employers complete Section 3 when applicable to reverify employment authorization for current employees, reverify or updating employment authorization for rehired employees or to record name changes for current employees

There is a Spanish version of Form 1-9. Employers in Puerto Rico may use either the Spanish or English version of the form. Employers outside of Puerto Rico must retain the English version of the form for their records, but may use the Spanish form as a translation tool.

Employers may complete, sign and store the Form I-9 electronically, but there are specific regulations that must be met. Employers who use an electronic Form I-9, but do not comply with all of the standards will be found to have no properly completed forms.

US Citizenship and Immigration Services (USCIS) provides I-9 Central in both English and Spanish to assist employers with the Form I-9. USCIS also provides the M-274 Handbook for Employers—Guidance for Completing Form I-9. The 65-page guidance assists employers with complying with the requirements.

Individuals may be prosecuted for knowingly and willfully entering false information on the form. Employers may be fined if the form is not properly completed or retained. Civil penalties currently range from $224 to $2,236 per form.

The following government agencies may conduct Form I-9 audits:

Department of Justice’s (DOJ) immigrant and Employee Rights Section (IER)

Department of Labor (DOL)

U.S. Immigration and Customs Enforcement (ICE)

ICE, IER, and DOL provide employers a minimum of three days’ notice before inspecting a retained Form I-9. The employer must make Forms I-9 available upon request at the location where the agency requests to see them. ICE carries out the majority of Form I-9 audits and uses the inspection program to promote compliance with the law and deter illegal employment. Worksite enforcement continues to trend upwards. In fiscal year 2018, there was a 305% increase in worksite investigations and a 340% increase in Form I-9 audits.

Due to the increased penalty amounts and the increase in enforcement, it is considered a best practice to perform a self-audit both of your current forms as well as your Form I-9 process to ensure that you are complying with the regulations. ICE and IER have provided joint guidance to help employers perform internal audits and make corrections to improperly completed forms.