I-9 Compliance: Guidance for Employers for Ensuring Employment Eligibility

Among other compliance obligations, employers in the US have a legal responsibility to verify that all new employees are legally authorized to work in the country. This involves completing a legal document known as an  I-9 form, which verifies the identity and employment eligibility of all employees hired for work in the US. Failure to comply with the I-9 regulations can result in fines as well as criminal penalties for repeated violations. It is, therefore, essential for organizations to streamline their I-9 process to ensure that they remain compliant with the regulations.

In this article, we will discuss the I-9 process, common mistakes made during the process, and best practices for completing the form accurately and efficiently. 

What is the I-9 form?

Under the Immigration Reform and Control Act (IRCA) of 1986 all employers in the US, regardless of size, are required to complete a Form I-9 employment eligibility verification within three business days of hiring a new employee to work in the United States. The I-9 form process, which is managed by the  United States Citizenship and Immigration Services (USCIS), applies to the hiring of both citizens and non-citizens. 

The form is divided into the following three sections:

• Section 1: This section collects employee information and requires their attestation to its accuracy. It must be completed by the employee on or before the first day of employment. 

• Section 2:  This section requires the employer to review the employee’s documents to verify their identity and eligibility to work in the US. It must be completed by the employer within three business days of the employee’s first day of work.

• Section 3: The final section of form I-9 is used for updating and/or reverifying employee information. It is completed by the employer when there is a change in an employee’s employment authorization status or if their name has legally changed. It is also used when an employee is re-employed within three years from the initial Form I-9 date. 

Common mistakes made during the I-9 process

The U.S. Immigration and Customs Enforcement (ICE) has the authority to conduct inspections and audits of a company’s Form I-9 records to ensure they are in compliance with the law. The I-9 process can be complicated and there are several common mistakes that employers can make which can result in hefty fines and penalties. 

Some of the most common I-9 mistakes include the following:

• Missed deadlines: Employers must complete the I-9 form within three business days of the employee’s start date. This strict and short deadline can be challenging for employers to meet, placing them at risk of non-compliance.

• Incomplete forms: Employers often fail to complete all sections of the form, leaving out critical information that can lead to non-compliance. For example, failure to indicate or employee misclassification of residency status.

• Accepting expired or invalid documents: Employers must ensure that the documents presented by employees are valid and unexpired. Accepting expired or invalid documents is a violation of I-9 regulations.

• Failure to reverify employment authorization: Employers must reverify an employee’s work authorization when their documentation expires. Failing to do so may result in penalties. 

• Improper storage and retention of forms: Employers must properly store and retain I-9 forms for at least three years from the date of hire, or one year after the employment ends. Employers must destroy the forms after this period and can face penalties for non-compliance.

It is worth noting that while ICE expects compliance with the Form I-9 requirements, where an organization has taken proactive steps to rectify an I-9 violation before an audit, the agency may take a more lenient stance when determining penalties for non-compliance. 

However, it is always advisable for employers to prioritize compliance with Form I-9 requirements to avoid potential legal and financial consequences.

Best practices for Form I-9 compliance

With the burden of compliance responsibilities on employers today it is recommended that businesses put in place an HR compliance guide and checklist to ensure compliance with relevant laws and regulations relating to employment and workplace practices within their organization. Such guidelines and checks should contain employer best practices for Form I-9 compliance, ensuring the form is completed accurately and efficiently, thereby reducing the likelihood of possible fines being imposed during an ICE audit. 

Below are some best practices that can assist companies in improving their I-9 processes:

• Create a culture of compliance: Establish an I-9 compliance policy in your organization that sets out the importance of accurately completing Form I-9 and ensuring that it is followed across all departments and locations. Ensure the policy is easily accessible to employees and clear instructions are provided on how to complete Section 1 of the form to eliminate errors or omissions. 

• Appoint an I-9 compliance leader: Designate an HR professional as an I-9 compliance leader to oversee the process and receive regular training on compliance requirements. This ensures accountability and consistency in the I-9 process, reducing the risk of errors and penalties.

• Verify documents in person: Employers must examine the employee’s documents in person to verify their identity and employment authorization. In addition, only original documents should be accepted, and not photocopies or faxed / scanned documents. This can help prevent the use of fraudulent documents, ensuring compliance with I-9 regulations.

• Use E-Verify: E-Verify is a free online tool administered by the Social Security Administration (SSA) and USCIS that enables employers to verify the employment eligibility of new hires electronically. By automating the verification of the employee’s identity and employment eligibility, E-verify helps to streamline the I-9 process, reducing errors and potential penalties for non-compliance.

• Conduct regular audits: Regular I-9 audits allow employers to identify and address potential errors or deficiencies in their record-keeping practices. Regular audits also demonstrate good faith efforts to comply with regulations and can mitigate potential penalties in case of an ICE audit.

Conclusion

The complexity of global compliance requires ensuring your organization adheres to all international laws and regulations, as well as the local laws and rules of the specific country in which you operate. 

As a Global PEO, Horizons can help your organization ensure compliance with all employment laws in the US and internationally to help your business hire globally and successfully expand its operations.