I-9 Compliance: Filing and Retention

Form I-9 is the official federal form used for Employment Eligibility Verification. The Department of Homeland Security (DHS) use it to verify the identity of new hires and that person's legal authorization to work with the United States Citizenship and Immigration Services (USCIS). Employment Eligibility Verification is required as a result of the Immigration Reform and Control Act of 1986. 

I-9 Filing and Retention

Employment attorneys typically recommend that you keep all employees' I-9s in either an HR software or system, separate master file, or a 3-ring binder. I-9s are subject to unique record retention laws. Storing all the records together, in one place, will make it easier to keep track of them for as long as needed. 

For ease of organization, remove the employee's I-9 on their termination date and store in a separate “terminated” file until the appropriate discard date. By keeping a folder of your current employees and a separate one with your terminated employees, this helps with organization.

How Long Do You Need to Store or Retain I-9s?

I-9 forms need to be retained as long as the employee works for you. After employment has ended, the forms need to be kept three years after the start date or one year after the termination date.

Who Completes Form I-9?

Either the employer or the employer representative will complete the form. Section 2 must be completed by the individual that reviews the required IDs. If a notary is acting as an employer representative be sure to discuss with them ahead of time as certain notaries can not complete section 2. It is not required to have this form officially notarized. 

When is Form I-9 Not Required? 

Non-employees such as volunteers, unpaid interns, and any independent contractors are not required to complete an I-9 form. Employees that were hired before November 6th 1986, or anyone hired for casual domestic work in a private home are not required to have an I-9.

Acceptable Documents

Most people are not document experts. So, what is acceptable documentation for the purpose of the I-9? You are expected to have documents that appear genuine and relate to the person who is giving them to you. For the purposes of section 2, the employee must present either one document from List A or one document from List B and one from List C. The accepted documents are found on the last page of the I-9. You can not specify which document employees use. You must present them with the accepted list. 

List of Acceptable Documents

The list itself is found on the form I-9 and is broken down into list A (where only one document is required, and list B and list C (where one document from each list is required). 

However, the following guidelines must be followed for accepted documents as well:

• The document must be unexpired
• The document must be presented within 3 business days of hire
• Photocopied documents are not accepted
• Receipts in lieu of IDs

E-Verify 

E-Verify is a free web-based system accessible via the internet that compares information on the I-9 to government records. This helps employers accurately compare information provided on the I-9 against millions of government records including DHS and Social Security Administration records to confirm eligibility. 

E-Verify Requirements

• Optional for most US employers
• Required by federal or state law:
  • Federal contractors and subcontractors, if the contractor contains the Federal Acquisition Regulation E-Verify Clause.
  • It is required in Alabama, Arizona, Mississippi, and South Carolina
• Newly hired employees must provide social security number
• Any list B document must contain a photograph
• Certain documentation must be photocopied for E-Verify photo matching

I-9 Penalties for Non-Compliance

By not paying attention to your I-9 responsibilities you may find yourself faced with penalties. Accurate completion is very important for employers, which can be helped through the use of employee onboarding or more holistic HR software.

Employer Penalties

There are civil and criminal penalties for knowingly hiring or continuing to employ an unauthorized alien and failing to comply with I-9 requirements or misusing identity documents. 

There are also unlawful discrimination penalties for engaging in unfair immigration or related employment practices. The financial penalties vary greatly upon the situation and the level of the offense. 

Conducting an Internal I-9 Audit

It can be beneficial to conduct an audit of your organization’s I-9 records. Doing so can be critical for your compliance efforts. The finding from your audit will most likely become part of regulatory or legal proceedings against the employer.

If you find things in your audit and you do not address the problem that you find, the audit can increase your liability. The audit then would serve as evidence against the employer. 

Internal Audit Checklist Steps

• Organize documents
• Determine priorities
• Reach out to each employee without an I-9 or with an incomplete I-9
• Correction
• Terminated employees
• Recording the audit 

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