What is a Form I-9?
Form I-9 helps employers to verify individuals who are authorized to work in the United States. All employees hired after November 6, 1986 are required to complete a Form I-9. This includes citizens and noncitizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9.1
In the news…
Recently the U.S. Immigration and Customs Enforcement (ICE) issued 652 audits to businesses nationwide as an initiative to enforce employment and immigration compliance. With the recent influx of Notices of Inspections (NOIs), companies across the nation may be left wondering… “Who’s Next?” From I-9 basic requirements to storage & NOIs, this paper will offer best practices to prevent Form I-9 violations as well as tips on compliance.
Glossary of Terms
Below are some helpful glossary terms to reference when reading about Form I-9 compliance:
| IRCA: The Immigration Reform and Control Act: makes it unlawful for an employer to hire any person who is not legally authorized to work in the United States, and it requires employers to verify the employment eligibility of all new employees.
USCIS: The U.S. Citizenship and Immigration Services: the government agency that oversees lawful immigration to the United States of America.
NOIs: Notice of Inspections: administered prior to an audit to determine whether or not a company is complying with employment eligibility verification laws and regulations
ICE: U.S. Immigration and Customs Enforcement: the largest investigative arm of the Department of Homeland Security
DHS: Department of Homeland Security: is primarily responsible for protecting the U.S. from terrorist attacks and natural disasters
OSC: Office of Special Counsel for Immigration-Related Unfair Employment Practices: is a section within the Department of Justice's Civil Rights Division that enforces the anti-discrimination provision of the Immigration and Nationality Act
DOL: Department of Labor:is responsible for occupational safety, wage and hour standards, unemployment insurance benefits, and re-employment services
Where can I access a Form I-9?
A PDF version of the form is available for download from the U.S. Citizenship and Immigration Services (USCIS) Web site at www.uscis.gov.
How long do I have to complete each section of a Form I-9?
At the time of hire, all employees must complete Section 1 of form I-9 in its entirety.
If the employee is not able to complete Section 1 without assistance or if he or she needs the form translated, a preparer or translator must read the form to the employee and have the employee sign the form in the appropriate place. In addition, the preparer or translator must also complete the Preparer/Translator Certification block on the form.
After the employee’s information has been fully reviewed, the employer must complete Section 2 of Form 1-9 within 3 business days of the first day of work.
Section 2 includes establishing the identity and employment authorization of the employee through documentation. The employer must examine one document from List A, or one from List B AND one from List C. In addition, the employer must record the title, issuing authority, number, and expiration date of the document as well as the date of hire and correct information in the verification block.2
How & where can I-9’s be stored?
Employers must retain completed Forms I-9 for either 3 years after the date they hire an employee, or 1 year after the date employment is terminated (whichever is later). The forms can be stored 4 possible ways: Paper, Microfilm, Microfiche, or Electronically. Whichever method you choose, remember that the Forms I-9 must be readily accessible within 3 days of an inspection request.
If your company chooses to retain the forms in paper format you may retain completed forms onsite or at an off-site storage facility.
(Microfilm or Microfiche)
Forms I-9 may be retained on microfilm or microfiche. When choosing these forms of retention it is important to abide by a few best practices.
- Select film stock that is capable of preserving the image for the entire retention period, which could be upwards of 20 years.
- Use well-maintained equipment to provide clear viewings as well as capable of reproducing legible paper copies
An electronic storage system must include the following in order to retain I-9s:
- Reasonable controls to ensure the integrity, accuracy, and reliability of the electronic storage system
- Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature, if used
- An inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used
- A retrieval system that includes an indexing system that permits searches by any data element
- The ability to reproduce legible paper copies3
- All electronic Forms I-9 should be kept private. Ensure that only your authorized HR professionals have access to these records
- Backup all electronic copies to protect against information loss. If you’re using HR software, check if your service provider offers this feature
- Establish a pipeline and track all Form I-9 actions. From creation to views & updates, there should be a permanent record of all information concerning access to the forms
What are some ways to prevent I-9 violations?
Employers can avoid I-9 violations by following a few best practices4 :
- Designate a trained HR leader within your company to centralize the Form I-9 process
- Conduct annual self audits with aid from your legal counsel or by an external auditing firm
- Create a line of succession for the HR professionals in charge of I-9’s to ensure that if an NOI is issued the forms can be accessed quickly and efficiently
- Ensure that all HR professionals are trained on Form I-9 compliance as well as updated on new laws or processes
- Establishan efficient pipeline between HR and legal counsel in the case of an audit
What happens if I receive a NOI?
DHS, OSC, and DOL give employers 3 days notice prior to inspecting retained Forms I-9. The employer must make Forms I-9 available upon request at the location where DHS, OSC, or DOL requests to see them.
If you store Forms I-9 at an off-site location:
- Inform the inspecting officers of the location where you store them and make arrangements for the inspection. The inspect¬ing officers can perform an inspection at an office of an authorized agency of the United States if previous arrangements are made
- If you refuse or delay an inspection, you will be in viola¬tion of DHS retention requirements What do I need at the time of inspection? If your company does receive an NOI, it’s important to know exactly what you need as well as your rights:
- Retrieve and reproduce only the Forms I-9 and supporting documentation specifically request¬ed by the inspecting officer
- Provide the inspecting officer with appropriate hardware and software, personnel, and docu¬mentation necessary to locate, retrieve, read, and reproduce any electronically stored Forms I-9, any supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity, and reliability of the records
- Provide the inspecting officer, if requested, any rea¬sonably available or obtainable electronic summary file(s), such as spreadsheets, containing all of the information fields on all of the electronically stored Forms I-9 5
What are the penalties of non-compliance?
Failing to properly maintain Forms I-9 can result in fines anywhere from $100 to $10,000 per violation as well as forfeiture of the company’s assets.
How iCIMS Can Help
iCIMS’ Talent Platform offers you the ability to request, route, complete and store new-hire I-9 Forms electronically. Secure and flexible, iCIMS’ Talent Platform is equipped with a powerful three-tier Reporting Center to easily generate I-9 reports. Other benefits include the ability to:
- Automate the collection and storage of I-9 information
- Create a consistent process for all online applications
- Generate compliance reporting
- Quickly & securely access completed I-9 forms for reporting, printing, or re-verifying
1 USCIS: Employment Eligibility Verification
2 Handbook for Employers: Instructions for Completing Form I-9
3 Handbook for Employers: Instructions for Completing Form I-9
4 ICE: Best Hiring Practices
5 Handbook for Employers: Instructions for Completing Form I-9