Form I-9 is often referred to as one of the longest 2-page documents HR staff get to work with. In use ever since 1986, the form comes with extensive instructions, along with occasional updates on I-9 Central, M-274 Handbook, and Department of Justice (DOJ) websites. It is a federally mandated form and has to be completed for every employee hired in the USA in order to verify the identity and work authorization of those hires. While the form is complex, there are basic steps businesses can take to improve their I-9 compliance.
Form I-9 Essentials
Form I-9 verifies the employment eligibility of every new employee hired by a company in the United States. Individuals eligible to work include:
- citizens of the United States;
- noncitizen nationals of the United States;
- lawful permanent residents (i.e. green card holders), and
- aliens authorized to work.
The exceptions include:
- Individuals hired on or before Nov. 6, 1986, who are continuing their employment and have a reasonable expectation of employment at all times;
- Individuals employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
- Independent contractors for whom you do not set work hours or provide tools to do the job; and
- Individuals not physically working in the U.S. or U.S. Territories.
The form has to be completed within 3 business days starting from the date of hire. The employer is not only responsible for its retention but also for its accuracy, and the incredibly high margin of errors registered in the process of completion ranging from 75% to 85% or – 3 errors per form depending on the industry, says enough about how difficult it is for an employer to establish, maintain, and improve I-9 compliance.
Learn more about ways to improve I-9 compliance by watching our webinar.
How to Improve I-9 Compliance
Every employer who takes I-9 compliance seriously should make sure to integrate best practices into the hiring and onboarding procedures. The experts warn that Form I-9 compliance can be hard, expensive and time-consuming but extremely important given that non-compliance may result in a series of adverse consequences including bankruptcy due to hefty penalties. However, to prevent this and stay in line with the necessary Form I-9 requirements, here are seven tips employers can consider.
1. Use the Correct Version of Form-9 and Ensure Timeliness
The use of a correct version of the form is essential for compliance. A new version is coming after October 31, 2022, and after that date, the use of the currently valid Form I-9 will become obsolete and unlawful.
It is necessary to follow the three business days rule and put in place a policy to enable a timely completion of the form for new hires. To that end, it can be useful to establish a day in the week when a new employee joins the staff in order to ensure the timeliness of the procedure. Being consistent with the policy makes a difference and helps improve I-9 compliance by making it easier to meet the hard deadlines.
2. Record-Keeping, Storage and Retention Standards
How an employer chooses to store I-9 on file is a matter of choice – be it on paper, cloud, microfilm, or disk, on- or off-site, as long as it guarantees secure storage. It is advisable to keep them separate from personal records, together with all the copies and all the amendments i.e. corrections made during self-audits.
The retention period is either three years after the date of hire, or one year after the employment ends, whichever comes later. Upon inspection notice, the employer must be able to provide the complete I-9 documentation within 72 hours. No matter how technical these methods and timelines are, if employers are attempting to improve I-9 compliance, it is critical to follow them.
3. Adopt Good Documentation Practices
Although a person responsible for handling Form I-9 does not need to be a document expert, they do need to make sure that the document appears to be reasonably genuine and that it relates to the individual presenting it. Documents presented need to be original, with the exception of the certified copy of the birth certificate. No expired documents are allowed.
Acceptable I-9 documents are listed on page 3 of Form I-9 and divided into three parts, as list A, B, and C. The employer must allow the employee to choose which documentation they wish to provide – either a document from list A, or a combination of documents from lists B and C, and they may not tell an employee which specific documents to present. Doing so could be construed as discrimination and the employer could be subject to fines if found guilty of this practice.
In cases when an employee presents a receipt for a document that was lost, stolen or damaged, it is possible to accept such a replacement; the employee must bring the original document for inspection within 90 days. The documentation policy must be maintained consistently for all new employees.
4. Pay Attention to Section 3 Reverifications
Section 3 of the Form I-9 is used only in the following cases: for reverification of employment, to report a legal name change, or for rehire. Employers must track the expiration dates of work authorization documents to ensure reverification is completed before their expiration, and good practice suggests that they notify employees of the upcoming expiration up to six months in advance. After the expiration date, they may not continue employment without updating or reverifying the employee’s Form I-9. To maintain I-9 compliance, section 3 must be completed, signed, and dated on or before the expiration of the previous work authorization document.
If you rehire your employee within 3 years of the date that a previous Form I-9 was completed, you may either complete a new Form I-9 or complete Section 3 of the previously completed Form I-9. If the current version of Form I-9 is different from the previously completed Form I-9, you must complete Section 3 on the current version.
5. Monitor Legislation, Enable Training and Development
It is impossible to overemphasize the importance of the updates coming from federal sources for a constant effort to improve I-9 compliance. Given the complexity of the form, the company’s HR needs to make sure that their understanding remains full and reliable at any moment, i.e. it is advised they “religiously follow” updates to I-Central, DOJ, as well as E-Verify, along with their training opportunities and webinars containing extensive information and practical guidance.
Only the individuals who have received appropriate training should be involved in I-9 handling. It is critical to also include a secondary review in the verification process, in order to avoid human errors made in haste or due to the lack of understanding of different types of work authorization documents. Needless to say, all the updates related to Form I-9, regulation and immigration law related to work authorization must be included in the training of personnel and the company handbook as a part of regular operations.
6. Make Sure to Self-Audit
In an effort to detect possible substantive and technical violations, regular annual self-audits are recommended. The employer would want to detect and correct any possible errors before the government gets involved.
All the errors and their corrections need to be documented, dated, and stored along with the original forms. Even though the process may seem tedious and time-consuming, it is worth the effort. According to the case studies conducted by our experts, internal audits can help avoid huge fines, ranging from $252 to $2,507 per employee, and even more, in case of repeated offense. Simply put, self-audits are a necessity if the employer is trying to establish and improve I-9 compliance.
7. Automate Operations and Participate in E-Verify
The last best practice for employers encompasses all the previous ones. The complex procedures prone to human errors that take a lot of time, and may keep employers on their toes if subjected to ICE Inspections, can be replaced with automated solutions and provide lasting relief to the HR department.
The automation and outsourcing of I-9 management go hand in hand with integration into E-Verify. E-Verify enrollment is voluntary and participating employers are presumed not to have knowingly hired unauthorized workers. Though, DHS does not consider using E-Verify to provide a “safe harbor” from worksite enforcement. Additionally, E-Verify participation removes the burden from the employer to determine the authenticity of the documents presented and can also reduce the number of unauthorized workers employed.
Improve I-9 Compliance with a Proactive Approach
Trying to keep up with Form I-9 duties could turn out to be one of the most expensive stumbling blocks for a company. Whether from experience or by following the tips we outlined here, a responsible employer can easily come to the conclusion that the best way to ensure and improve I-9 compliance is to prevent I-9 violations from occurring. Adopting a proactive approach and employing the recommended best practices makes it possible for a company to stay in a safe area of compliance. Finally, by automating the entire process, the risk of non-compliance, errors, and violations will be minimized along with hiring costs and time devoted to finessing the I-9 elements into compliant documentation.
