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What Every Human Resources Professional Should Know About I-9 Compliance

The Do's

  • The employer must complete I-9 (Employment Eligibility Verification) forms for all employees hired after November 6, 1986.
  • The employer must retain the original I-9 form for three years after the date of hire, or one year after the date employment ends, whichever is later.
  • The employer should uniformly complete the I-9 form at the same point with each hire (ideally at the same time the employee completes Section 1), but in no case after the third business day after the employment begins.
  • The new hire must complete Section 1 of the I-9 form when the employee begins work.
  • The employee has the right to choose the document or documents that meet the I-9 requirements.
  • The employer must ensure that the new hire presents either one ORIGINAL List A document, OR one list B document and one list C document.
  • The employer may, but is not required to, copy the documents presented by the employee and attach them to the completed I-9 form. If the employer does this, it must do so for all new hires.
  • It is critically important to make sure that the I-9 form is properly and fully completed at the outset.
  • If the employer discovers incorrectly or incompletely completed forms, it should take steps to address the deficiency, but should not backdate any corrections or amendments to the form. Instead, it should conspicuously sign and date such changes at the time that such remedial steps are taken. If the deficiencies are in Section 1, the employee must sign and date his/her corrections.
  • The employer should have a "tickler" system to re-verify all employees who present work authorization that bears an expiration date.
  • The employer must suspend or terminate the employment of any employee who is discovered to be working without authorization. It is wise to consult with an attorney before suspending or terminating an employee, since wrongful termination could lead to a discrimination or other claim.
  • The employer should check with its attorney if it suspects that an employee has presented false documents or has provided inconsistent information to the employer, and determine what steps would be proper, appropriate and legal to address the concern.
The Don'ts [Common Employer Profile]

  • The employer should not treat foreign looking or sounding employees differently from other employees. Requiring new hires who are part of a minority group to take additional steps, or routinely checking their social security numbers without specific cause, could lead to a discrimination claim. The employer must implement I-9 procedure with respect to its entire work force in a uniform fashion.
  • The employer should not require the employee to present more documents than required by the I-9 rules. For example, asking a hire to present a "Green Card" or U.S. Passport is not legal if the employee has presented other documents that satisfy the I-9 rules.
  • With the sole exception of verifying workers who present temporary I-551 stamps (temporary evidence of lawful employment), employers should NOT reverify the documents of workers who have presented permanent resident cards, even though the permanent resident card lists an expiration date.
  • The employer should not copy the original documents that some new hires present, and not copy such documents for others. We recommend copying such documents for all employees because such copies stapled to the I-9 form may help meet the "good faith" completion obligation.
  • The employer should not commingle the I-9 forms with the regular employment file documents. Keep the I-9 forms in a separate file cabinet, and separate those for active employees and those for former employees.
  • Once a Notice of Audit has been received, an employer should not mark up or take remedial action on existing I-9 forms. (Some CIS or DOL officers could consider such steps to involve falsification of evidence if done after receipt of a Notice of Audit).
  • The employer should not go over one year without conducting a random audit of selected I-9 forms, and ensuring that it has an I-9 form in place for each employee hired after November 6, 1986. One of CIS or DOL's first steps in an audit is to match the I-9 forms against payroll or tax records to determine if the employer has failed to complete I-9 forms for employees.
 

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