The 1986 Immigration Reform and Control Act (IRCA) requires that all US employers - including foreign companies operating in the US - verify the identity and work authorisation of individuals hired after November 6, 1986 through a specific process, whether that individual is a US citizen or not. This specific process of verification is done by the completion of Form I-9 (Employment Eligibility Verification) and must be done by the end of the date employment begins. It is not necessary for the form to be filed with the United States Citizenship and Immigration Service.
The purpose of Form I-9
The general purpose of the form is to ensure employers are hiring individuals that are authorised to work in the United States. Additionally, the form seeks to protect those who are eligible to work in the US from being discriminated against.
Although the Form I-9 is relatively simple and takes only a few minutes to complete, many employers (including large, established companies) in the US do not complete Form I-9s correctly. If audited, employers can face hefty fines for each Form I-9 that is filled out incorrectly as well as possible other fines connected with the errors, if it is deemed such errors were made knowingly. All HR representatives, or those within the company who deal with I-9 compliance, should be aware of the correct procedures surrounding Form I-9, in order to avoid possible fines or more severe penalties.
The employer should be aware of the documents that Form I-9 lists as acceptable in order to properly assess such documents for validity and authenticity if/when the employee presents them. Lists of Acceptable Documents is available on Page 3 of Form I-9. Illustrated examples of some of these acceptable documents are available in Form M-274 (Handbook for Employers) found on the USCIS website.
For whom Form I-9 is not necessary:
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Employees hired before November 6, 1986, and continuously employed by the same employer.
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Individuals performing casual employment who provide domestic service in a private home that is sporadic, irregular or intermittent.
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Independent contractors.
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Workers provided to employers by individual or entities providing contract services, such as temporary agencies (in such cases, the contracting party is the employer for I-9 purposes)
Filling out Form I-9
The employer must show the List of Acceptable Documents to the employee. The employee should then decide what documents to present to the employer. The employer CANNOT specify which document(s) they will accept from an employee or request more or different documentation than is required. If the document(s) appear to be genuine and to relate to the employee presenting them, the employer cannot request different documentation. It is important that Section 1; Employee Information and Verification, and Section 2; Employer Review and Verification, be completed within one day of the commencement of the employment.
Common errors made in the completion of Form I-9
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The employer reviews the Lists of Acceptable Documents on the reverse side of Form I-9 and tells the employee what documents they should submit. For example, the employer states, “I need a copy of your driver’s license and social security card.”
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The employer accepts documents from the wrong combination of lists. For example, the employer accepts a US passport and driver’s license only, both which establish identity only.
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The employee does not list all requested information in Section 1, i.e. the validity date of their work authorisation, if applicable, or forgets to sign in Section 1.
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The employer fills out Section 1 of the form for the employee or makes corrections on behalf of the employee in Section 1.
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The employer does not list all the requested information in Section 2, namely the Issuing Authority or expiration date, if any.
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The employer forgets to list when the individual’s employment began in the Certification section of Form I-9. Not completing the Form I-9 for employees that perform intermittent or other services, when the employee is their employee. For example, employee of Company X who is a Canadian citizen travels to Company X’s location in a US branch to work for several months at a time, a few times each year. Because this employee would need work authorisation from the US, an Form I-9 should be completed for him/her. Another example would be an employee working for Company Y that is contracted out to Company Z. Company Y would be responsible for completing the Form I-9 for the employee.
Updating and Reverifying the document(s)
Section 3 of the form is used to update and reverify information. The Form I-9 itself outlines when such updating or reverification would be suitable. In most instances, such reverification would take place on or before the employee’s expiration date as recorded in Section 1 of the form.
It is important that HR representatives (or those deemed appropriate within the company to complete the Form I-9s) to keep track of when their employees documents, as listed in Section 1, will expire to ensure updating or reverification is done within the time limits set out by I-9 compliance rules.
It should be noted that temporary evidence of permanent resident status in the form of a temporary I-551 stamp in an unexpired passport is subject to reverification. However, expired permanent resident cards (“green cards”) are not.
Retaining Form I-9
Employers must retain the completed forms for three years after the date of hire or one year after the date employment ends, whichever is later. It is not appropriate to retain Form I-9s with an employee’s payroll file. It is recommended that employers create a separate filing system for the Form I-9s of their employees, enabling them to keep better track of the information contained within them.
Auditing
It is recommended that employers regularly audit their Form I-9s internally and purge the I-9’s that can be purged and provided they are not required to be retained, as outlined in the paragraph above. It is recommended to purge such I-9’s when able. The reason is because an employer can actually be liable for errors on old Form I-9s. Purging old I-9’s limits the risks for such liability if an external audit is performed by the U.S. Citizenship and Immigration Services (USCIS) or The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC). These audits can be performed unannounced.
What if I discover there is a mistake or an I-9 has never been completed?
If you discover an error on an Form I-9 that was completed previously, or find out that an I-9 was never completed on an employee, correct the error as soon as possible and/or complete an I-9 as soon as possible. The easiest way to do this is by filling out a new I-9 and attaching the old. However, you cannot backdate the form. You can also include an explanatory annotation for the error or untimely-completed I-9.
Company reorganisation or mergers
An employer that acquires another business or company and ends up acquiring the company’s employees as a result will not have to fill out new I-9’s for the acquired employees. However, the employer that has acquired the employees will be responsible for the I-9’s that have been completed. In the case of a merger or acquisition, it is recommended that an internal audit be performed of the former company’s Form I-9s.
Additional information
There are other circumstances that may apply to you when completing I-9’s for your employees. There are a number of sources out there to help you address such circumstances. The best source to find additional information is the website of the USCIS, where you can find booklets of additional information on completion of the I-9. Alternatively, if you have any questions, please feel free to contact us, and we will be happy to answer any questions you may have and point you in the right direction, if need be.