Navigating the I-9 (Opinion)

Form I-9, in all its complexity, was created to accomplish one simple goal: to document proof of the identity and authorization of every worker in the United States.

All U.S. employers are required to complete Form I-9 for each newly hired employee. And therein lies the problem.

A two-page form that requires six pages of instruction and a 66-page handbook to understand is fraught with potential for costly mistakes. In other words, Form I-9 is an employer’s paperwork nightmare. With more than 80 potential errors that can be made on one form, internal studies have found a typical company will have errors on more than half of their I-9 forms.

Fortunately, the expense and inconvenience of an Immigration and Customs Enforcement I-9 audit can be significantly curtailed, if not removed, by a small amount of planning and consistency. Here are four tips all employers should know:

• Create a Written Compliance Plan. Every company needs a written employment verification compliance plan. Not only does a written plan provide a quick reference for verification procedures, it also demonstrates your company’s good faith effort to comply with the law.

Furthermore, having a written plan makes your business less susceptible to discrimination complaints, since verification procedures under the plan would be followed uniformly for every hire.
  • Photocopy Employee Supporting Documentation. While employers are not required to photocopy supporting documents provided by an employee for the purposes of I-9 verification, I recommend it for two reasons:

Retaining copies of employee documentation such as passports and birth certificates lets ICE know you have nothing to hide and have thoroughly reviewed each supporting document.

During an I-9 audit, the retention of supporting documents could be the difference between a substantive and a technical violation — or in other words, larger fines and penalties.

• Know Your Re-verification Dates. When an employee’s employment authorization or authorization document expires, you must re-verify that employee’s work authorization.

If an employee presents an authorization document with an expiration date, create a tickler system in your calendar to remind you to re-verify that employee within 90 days of the expiration date. It’s best to consult an I-9 attorney before re-verification, since requesting updated documents where re-verification is not required can be considered discriminatory.

• Know Your Throw Away Dates. First, I must emphasize that employers are required to retain all employee I-9s for as long as the individual works for the employer. That said, there will come a time or two throughout your I-9 compliance journey when it becomes necessary to destroy some evidence. I realize this may make you uncomfortable, but trust me — I’m a lawyer.

All joking aside, employers should know they are not required to keep I-9s forever. Just don’t make the mistake of trashing the former employee’s I-9 with the rest of his personnel file.

U.S. Citizenship and Immigration Services requires retention of former employee I-9s for three years after the date of hire, or one year after the date of termination, whichever is later.

Since 2009, ICE has audited more than 8,000 employers and imposed more than $85 million in financial sanctions. Many unwary employers who have suffered through an ICE I-9 audit are shocked to discover fines and penalties could have been mitigated if they had only taken precautionary measures to ensure I-9 compliance.

Evan C. Bell previously served as realty compliance audit manager for Wal-Mart Stores Inc., and currently is an attorney with Wallace, Martin, Duke & Russell PLLC of Little Rock. He can be reached at [email protected].