All U.S. employers must verify the employment eligibility and identity of each employee hired to work in the United States by completing Form I-9 for every employee, including U.S. citizens.
This sounds like a straightforward mandate but, as with any government regulation, it has a lot of moving parts and it’s easy to make a mistake or get confused about what information or action is required. And, just like other regulations, non-compliance related to Form I-9 can result in significant monetary penalties.
As of June 2020, the fine per individual for paperwork or technical violations ranges from $234 to $2,332. Fines for a first offense of knowingly hiring or continuing to employ unauthorized workers ranges from $583 to $4,667.
Few people will be inclined to memorize all the nuances of Form I-9, but it does help to keep the following five things in mind.
1. All Employers Need to Use Latest Version of Form I-9
As previously stated, a completed Form 1-9 is required for all employees, and this rule applies to all U.S. employers with virtually no exception. Employers are not required to complete Form I-9 for independent contractors, but it is against the law to knowingly contract with an individual who is not authorized to work in the U.S.
Additionally, as of May 1, 2020, employers are required to use the new version of Form I-9 (revision date Oct. 21, 2019). The new form should be used only for new hires moving forward—you should NOT require current employees to fill out the new version.
2. Employees Must Complete Section 1 By First Day
Employees may complete Section 1 before their first day of employment, if they have accepted your job offer. Otherwise, the section must be completed on their first day of work for pay (aka hire date).
Within three business days of hire, employees must present unexpired original documentation that shows their identity and employment authorization. Employees choose which documentation to present from the available options identified on the form.
3. Employers Must Complete Form Within Three Days
An employer must use the documents presented by the employee to complete and sign Section 2 of Form I-9 within three business days of hire date. An employer may not, however, dictate which documents must be presented. The employee must be allowed to choose from the lists of acceptable documentation.
Employers are required to physically examine each document to determine if it reasonably appears to be genuine and accurately represent the employee presenting it. If a document does not satisfy these criteria, the employer should reject it and allow the employee to present other acceptable documentation.
4. Form I-9 Must Be Kept After Employee Separation
Employers must keep a completed Form I-9 for every employee for the duration of employment. Once the worker’s employment has ended, you must keep the Form I-9 for three years after the date of hire or one year after the date of separation, whichever is later.
If you store paper versions of the Forms I-9, you must keep the original signed document—copies are not valid. Employers may, however, choose to scan and upload the original signed forms to retain them electronically. Once these forms are securely stored in electronic format, the original paper Forms I-9 may be destroyed.
5. An Audit Can Happen at Random – Be Prepared
An I-9 audit can be triggered for a variety of reasons, including random samples and reporting by disgruntled or former employees. Certain industries (construction, restaurants, meat packing, etc.) are more susceptible to Form 1-9 audits, but they can occur anywhere.
Your best defense is a good offense – conduct regular compliance self-audits and ensure your records meet requirements and are easily accessible if you are required to present them.
Looking for an Easy-to-Use Compliance Guide?
Look no further! Our visual guide to Common Workplace Compliance Requirements lets you see compliance basics at a glance.
With regular communication about regulatory updates and proactive solutions for employment practices, McCloneHR clients don’t need to worry they will be caught unaware. If you have questions about how to apply standards to your workforce, our team—including our inhouse compliance attorney—is here with answers and helpful guidance. Please don’t hesitate to reach out for more information.
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