Form I-9: Avoiding Common Compliance Pitfalls

Practice Areas

By: Angelita Chavez

Form I-9 is used to verify employment eligibility when hiring new employees or reverifying work authorization. All United States employers must gather and maintain original Form I-9 records for all employees, including foreign nationals. Immigration and Customs Enforcement (ICE) conducts worksite audits to enforce Form I-9 compliance, and penalties can be steep. It is vital that employers properly complete Form I-9 for all employees to mitigate risks such as civil or criminal sanctions. Other penalties may include exclusion from government contracts, and court orders to back pay or hire the affected individual.

i have e-verify. do i need to worry about completing forms i-9?
Yes. The E-Verify system does not replace the Form I-9 requirement under federal law.  All employers must know how to properly complete and maintain Form I-9.

Form I-9 is broken down into three sections:

  • Section 1: Completed only by the employee and no one else.
  • Section 2: Completed only by the employer or their authorized representative, and no one else.
  • Section 3: For employer reverification of any rehires or individual employees whose employment authorization is about to expire. This includes employees with EADs, non-immigrant status like Hs or Ls, and any other statuses that provide temporary work authorization.

what tpyes of form i-9 violations can i be liable for as an employer?
Form I-9 must be properly completed and signed by the employee and employer within a prescribed number of days. Employers normally have a certain number of business days to correct violations after being notified of them.

My recent hire never signed or dated section 1 in form i-9. what can i do now?
When an error occurs, employers can draft a written explanation of why the error happened and attach it to the Form I-9 in question. This is a good practice and may help demonstrate a good faith effort to properly complete Form I-9.

Employers should never backdate a Form I-9 or use whiteout to make corrections. Be sure to always document efforts to comply with Form I-9 regulations in writing. 

my employee has left my company. can i destroy their form i-9?
Do not destroy the Form I-9 as soon as an employee leaves your company. Under federal law, Forms I-9 must be kept for three years from an employee’s hire date, or one year after the employee’s last day of work, whichever happens later. 

what can i do to prepare for a form i-9 audit?
There are various things an employer can do to be better prepared in case of a Form I-9 audit:

  1. Designate an ICE point of contact within your company.
  2. Separate your Form I-9 files from personnel records. Forms I-9 should never be kept with your personnel records.
  3. Train your human resource (HR) personnel on how to properly complete the Form I-9 and correct any errors.
  4. Evaluate your Form I-9 policies and procedures periodically. This can be done annually or biannually depending on your industry.
  5. Conduct an internal audit to ensure ongoing compliance with Form I-9 requirements and prepare your company for worksite audits. Internal audits can also go a long way to mitigate risks and show good faith effort to comply or cure certain errors.

To find out more about how we can help your HR department improve Form I-9 and other regulatory compliance, please contact Chugh, LLP today at 877.CHUGH.85.



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