It is widely expected that enforcement of immigration status and work authorization at the employer level will be a top priority of the federal government over the next four years. On-site visits and audits by agencies, including U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and the U.S. Department of Labor (USDOL) are anticipated to increase in frequency. See here for a comprehensive guide to immigration worksite enforcement.
Among those enforcement areas, one particular area ripe for inspection by ICE is on employers’ completion and retention of Form I-9, Employment Eligibility Verification. Federal law requires all employers to complete a Form I-9 to document work authorization/employment eligibility for all new employees hired, and to update (“reverify”) the originally completed Form I-9 in some circumstances where new hires present employment authorization documents that will expire at some point in the future. In other words, the I-9 is the mechanism by which employers satisfy their legal obligation to ensure all employees are authorized to work in the United States under federal immigration law. A significant rise in I-9 audits conducted by ICE is expected in the coming months and years under the current administration.
With that in mind, the Harris Beach Murtha immigration practice group offers our Top Ten Tips on I-9 completion and retention:
Tip #1: Employers must complete a Form I-9 for all new “employees” hired. The I-9 is not completed only for “foreign” workers or individuals possessing temporary visas. Because the I-9 requirement only applies to “employees,” employers are not required to complete I-9s for individuals hired as (independent) contractors, though federal law still prohibits individuals or businesses from contracting with an independent contractor knowing that the individual is not authorized to work in the U.S. If your company uses a temporary or staffing agency to obtain workers, those workers are employees of that agency and provide services to your company as independent contractors. The agency completes Form I-9 for each worker they provide to your company, because the workers are considered employees of the agency, not of your company, though employers may want to ensure they have done their due diligence and confirm the agency has verified the employment eligibility of the individuals being contracted to the company.
Tip #2: Employees must complete and sign Section 1 of Form I-9 no later than their first day of employment (the actual commencement of employment of an employee for wages or other remuneration, referred to as date of hire in the Department of Homeland Security regulations), but may complete Section 1 any time after they accept the job offer. Preparers and translators can help employees complete Section 1.
Tip #3: Employers must complete and sign Section 2 of Form I-9 within 3 business days of the date of hire of your employee (the hire date means the first day of work for pay). For example, if your employee began work for pay on Monday, you must complete Section 2 by Thursday of that week. If the job lasts less than 3 days, you must complete Section 2 no later than the first day of work for pay. If an employee does not, or cannot, produce acceptable documentation by the end of the third business day after the date of hire, the employer should not allow the employee to continue working.
Tip #4: Employees must present original, acceptable, and unexpired documentation that shows the employer their identity and employment authorization. Your employees may choose to present either:
- One document from List A; or
- One document from List B in combination with one document from List C
List A documentation shows both identity and employment authorization. If an employee presents acceptable List A documentation, do not ask them to present List B or List C documentation.
List B documentation shows identity only and List C documentation shows employment authorization only. If an employee presents acceptable List B and List C documentation, do not ask them to present List A documentation.
In any case, employers should not request specific documents from employees. The employer should provide the employee with the Lists of Acceptable Documents and instruct the employee to provide either a List A document, or a combination of List B/List C documents. Employers likewise should not “over-document” their file. Eager new hires may volunteer too many documents; employers should instruct employees to only provide either a List A document, or a combination of List B/List C documents, but employers should never be completing all three columns (List A/B/C) in Section 2 of the Form I-9.
Tip #5: The employer (or its designated representative*) must perform an in-person, physical inspection of the original documents presented/provided by the employee. Photocopies of documents are not acceptable, and employers likewise may not inspect documents remotely, by e-mail, or via video/Zoom/similar methods, unless the employer is enrolled in E-Verify, in which case the Department of Homeland Security has authorized alternative procedures that would permit inspection of documents via a live video interaction with the employee.
*In instances where an employer is hiring a new employee remotely, to work at an off-site location where the employer is not located, the employer can have Section 2 of the Form I-9 completed by a designated/authorized representative, who would perform the required physical, in-person inspection of the employee’s documents and fill out Section 2 of the I-9 accordingly. For example, an employer in New York hiring a new employee to begin work from the employee’s home in California may designate the employee’s spouse to perform the in-person inspection of the employee’s documents and complete Section 2 of the Form I-9. Note in these cases, though, that the employer remains liable for any errors made in the completion of the Form I-9, so employers should provide detailed instructions and conduct a thorough review of the Form I-9 to ensure it is correctly completed.
Tip #6: In completing Section 2 of the Form I-9, be sure to record expiration dates of work authorization documents, in order to permit proper reverification. Employers should also implement a reminder or “tickler” system to ensure that they are properly and timely reverifying employees’ I-9 forms where applicable/as needed, to avoid situations where an employee’s work authorization unknowingly expires and they are allowed to continue working beyond such expiration date.
Tip #7: A Social Security Number is an optional field in Section 1 of the Form I-9 (unless the employer is using E-Verify, in which case a Social Security Number is required). Often for new hires coming to the United States from abroad on temporary work visas, they may not be able to apply for an SSN until they have arrived in the United States in a visa status that authorizes them to work, so they may not yet have an SSN immediately upon the start of employment, even though they may in fact be legally authorized to work.
Tip #8: Enrolling in/utilizing E-Verify is an additional step that employers may choose to do, in order to electronically verify the employment eligibility of their new hires. Note, though, that E-Verify is completed in addition to completing the I-9. It does not take the place of, or eliminate, an employer’s obligation to still complete a Form I-9 for all employees.
Tip #9: Employers should ensure they conduct regular refresher training for their employees who are tasked with responsibility for completing I-9s for new hires. Have a regular/predictable policy and procedure in place for completion of I-9s upon the hire of a new employee, and for reverifying/updating I-9s for employees who present work authorization documents with a future expiration date. Work with legal counsel to conduct such trainings or to assist with more complicated I-9 issues. Being able to document that the employer has made good-faith efforts to ensure maximum compliance with I-9 requirements can significantly help reduce or mitigate any fines or penalties that might be imposed should ICE conduct an I-9 audit and find mistakes. Being negligent, or simply ignoring the employer’s I-9 responsibilities and requirements, will only enhance any such fines that may be levied.
Tip #10: Lastly, the best defense to an ICE I-9 Audit is to catch and correct any errors before ICE does that for you. Conduct regular/routine self-audits of your I-9s, or work with legal counsel to conduct an I-9 audit for you. If/when errors are discovered, do not hide them. Cross off incorrect information with a single strike-through, and write in/date/initial any corrections, as opposed to using white-out. For more significant issues where I-9s were completed untimely, or not completed at all, prepare a memo to the file to explain the issue and how it has been addressed.
