March 21, 2024
U.S. employers of all sizes are only permitted to hire employees who are legally permitted to work in the United States. To enforce compliance with this federal law, employers must complete a Form I-9, or Employment Eligibility Verification, to verify the identity and employment authorization for each new hire.
Introduced in the Immigration Reform and Control Act (IRCA) of 1986, Form I-9 compliance is hardly new, however, the fines and penalties for noncompliance continue to be detrimental to small businesses. Read on to see the 8 key R’s of Form I-9 Compliance to minimize your risk of violations in 2024.
Requirements.
Every employer must collect a completed I-9 form from each paid employee. Along with a completed form, new employees must also provide official identification such as a state driver’s license, non-expired passport, Social Security card, birth certificate, Permanent Resident Card, etc.
The I-9s remain valid unless the employee has a break of more than one year of employment. International employees such as F-1 or J-1 must reverify their Form I-9 upon visa expiration and renewal.
Record Retention.
One of the most important parts of the Form I-9 process is the proper retention of the completed forms. In fact, employers can specifically be fined for each missing or improperly stored form, up to $1,100 per form.
Completed I-9 Forms must be retained for the duration the employee works for the organization. After employment comes to an end, the completed form must be held for either one year after the date employment ended or for three years after the date of hire, whichever is later.
These forms should be stored separately from other HR and personnel files, ensuring that you meet their unique record retention requirements. It is also recommended to have a separate folder for terminated employees’ I-9s, for better organization and ability to easily shred/destroy when the appropriate length of time passes.
Replications.
Employers are not usually required to make copies of the identification documents unless they participate in the E-Verify program. If you are copying these sensitive documents, make sure you are consistently copying them for every employee, regardless of their national original or work authorization status. Staple the copies to the Form I-9 and retain them together.
Review Classifications and for Errors.
Only workers classified as employees are required to have Form I-9 verification. Exceptions include:
- Independent contractors
- Volunteers
- Unpaid interns
- Casual domestic employment
- Workers hired before November 6, 1986
- Temporary employees from an agency (their I-9 should be with the staffing agency)
Another type of “review” when it comes to I-9 compliance is to self-audit your procedures and documents to minimize your risk of penalties in event of a DOL audit. Common mistakes employers can uncover may include:
- Missing employee name or identification
- Failure of employer or employee to sign
- Not specifying the identification documents
- Improper retention practices
Revisions.
What if in your self-audit you discover a mistake? If the error is in the employee’s corrected form, the employee should make corrections. If it is in the employer’s section, the employer should mark up the copy, initial and date the remarks, or can even complete an amended form with a note in the file with the existing Form I-9. Visit the U.S. Citizenship and Immigration Services (USCIS) website for step-by-step guidance.
What if an employee’s personal information changes? An employee with a name or address change does not need to update or complete a new Form I-9. It is recommended to update the employee’s records and I-9 information to ensure that you are maintaining correct and up-to-date information, but it is not a necessary task.
Rehires and Reverifications.
If your business rehires an employee within three years from the date that the Form I-9 was previously completed, the employer can choose to either issue an entirely new Form I-9 or may use the employee’s previous Form I-9 and complete Section Three. If using the previous form, (1) make sure to confirm their identity and the correct I-9 Form and (2) verify their employment eligibility that they are still authorized to work in the U.S.
If an employee’s employment authorization or their authorization documentation (such as a work visa) expires, the employer should request non-expired documentation and update Section 3 on a new I-9 Form, then attach it to the previous I-9 Form. Employers no not have to reverify U.S. citizens, noncitizen nationals, or lawful permanent residents.
Remote.
The law requires that all documents for I-9 verification be in their original format, and a fax, photo, or scan is unacceptable. If remote employees cannot meet their employer/manager in person for the documents, a local notary public may be of assistance.
Which brings us to the last point…
Restored Procedures as of 2023
Throughout the COVID-19 pandemic, many businesses were forced to go remove and hire employees virtually for a long period of time. Because of that, the USCIS loosened up on requirements for physical documents and permitted virtual inspections of the identification documents for remote businesses and workers. This temporary change to the Form I-9 process ended as of July 31, 2023.
This does not just impact remote employees and new hires going forward — Employers or HR departments should have a list of all employees whose documents were virtually inspected since the beginning of 2020. These employers who took advantage of the the virtual-only inspections had until August 30, 2023 to perform in-person physical document inspections. Once the new inspection takes place, employers are to update Section 2 of the employee’s I-9 and should write “COVID-19” as the reason for the delay and add “documents physically examined on [date].”
More information on the end of the COVID-19 Form I-9 flexibility can be found on the USCIS website or view their FAQs.
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