We often advise employers on how to comply with the federal law that requires them to verify the identity and employment authorization of their employees. This law is known as the Immigration Reform and Control Act of 1986 (IRCA), and it mandates that employers complete and retain a Form I-9 for each employee they hire.

The Form I-9 is a simple document that consists of three sections. Section 1 asks the employee to provide basic information such as name, address, date of birth, and citizenship or immigration status. Section 2 asks the employer to review the employee's original documents that prove their identity and employment authorization, such as a passport, a driver's license, a Social Security card, or a work permit. Section 3 is used to update or reverify the employee's information in case of a name change, an expiration of a document, or a rehire.

Completing and retaining the Form I-9 may seem like a straightforward task, but it can be fraught with pitfalls and risks for employers. The U.S. Immigration and Customs Enforcement (ICE) is the agency that enforces the IRCA and conducts audits and inspections of employers' I-9 records. If ICE finds that an employer has failed to properly complete or retain the Form I-9, or has knowingly hired or continued to employ an unauthorized worker, it can impose civil fines ranging from $230 to $23,331 per violation, depending on the severity and frequency of the offense. In some cases, ICE can also pursue criminal charges against employers who engage in a pattern or practice of violating the IRCA.

Auditing your I-9 forms

It is crucial for employers to conduct regular self-audits of their I-9 records and correct any errors or omissions before ICE comes knocking on their door. Here are some tips on how to check your I-9 forms and reduce your liability:

- Review your I-9 forms for completeness and accuracy. Make sure that all sections are filled out correctly and legibly, and that no fields are left blank. If there are any missing or incorrect information, ask the employee to provide the correct information and initial and date the correction. Do not erase or use white-out on the form.

- Ensure that you have copies of the documents that the employee presented for verification. You are not required to keep copies of the documents, but it is a good practice to do so in case of an audit. Make sure that the copies are clear and readable, and that they match the information on the form.

- Store your I-9 forms securely and separately from other personnel records. You should keep your I-9 forms in a locked file cabinet or a password-protected electronic system that only authorized personnel can access. You should also keep your I-9 forms separate from other employee records, such as payroll, benefits, or performance evaluations, to avoid disclosing sensitive information during an audit.

- Retain your I-9 forms for the required period of time. You must keep your I-9 forms for as long as the employee works for you, and for one year after the employee's termination date or three years after the employee's hire date, whichever is later. For example, if you hired an employee on January 1, 2020, and terminated them on December 31, 2020, you must keep their I-9 form until December 31, 2021. If you hired an employee on January 1, 2020, and they are still working for you on December 31, 2022, you must keep their I-9 form until December 31, 2023.

- Dispose of your I-9 forms properly when they are no longer needed. You should shred or delete your I-9 forms when they reach their retention date to prevent identity theft or unauthorized access. Do not throw away your I-9 forms in the trash or recycle bin.

By following these steps, you can ensure that your I-9 forms are compliant with the law and avoid costly fines and penalties from ICE. However, if you have any questions or concerns about your I-9 forms or need assistance with an audit or inspection, you should consult with a qualified labor attorney who can advise you on your rights and obligations under the IRCA.

Do you have additional questions about the I-9 form, or would like some assistance conducting an I-9 audit of your records? It may be a great time for us to have a chat, let’s talk!