The Form I-9, Employment Eligibility Verification, is a critical document for any employer in the United States. It’s a cornerstone of immigration compliance, designed to ensure that businesses only hire individuals authorized to work legally within the country. Navigating the complexities of Form I-9 requirements presents significant challenges for employers. The seven-page instruction booklet alone is daunting, but the difficulties multiply when considering the supplementary resources required for compliance. The M-274 Handbook for Employers provides further detailed guidance, adding another layer of complexity to understanding the nuances of I-9 completion and retention. For employers utilizing E-Verify, integrating the extensive E-Verify User Manual further increases the steep learning curve, resulting in a multifaceted process that requires significant time and effort to master and maintain compliance.
Key Requirements of Form I-9
Before discussing the pitfalls, it is essential to understand the basic Form I-9 requirements. The I-9 has two main sections, both presented on one page.
Section 1 – Employee Completion
Employees must complete this section before their first day of employment. It requires accurate personal information, including legal name, address, date of birth, and an attestation of citizenship or immigration status. Crucially, the employee must select one of the following statuses:
- U.S. Citizen
- Noncitizen National of the U.S.
- Lawful Permanent Resident
- Noncitizen Authorized to Work
Employees selecting “Noncitizen Authorized to Work” must provide additional information, such as their A-number, I-94 number, or foreign passport details. Employees must provide accurate and truthful information; falsification carries severe penalties.
Section 2 – Employer Review and Verification
The employer must complete this section within three business days of the employee’s start date. This involves:
- Document Examination: The employer or authorized agent must physically examine original documents proving the employee’s identity and employment authorization. Acceptable documents are listed in the I-9 instructions and fall into three categories: List A (documents proving both identity and employment authorization), List B (identity only), and List C (employment authorization only). The employer must accept documents that appear genuine and belong to the employee.
- Information Recording: The employer or authorized agent records the document information (type, issuing authority, number, and expiration date) in Section 2. Accurate recording is essential for compliance.
- Employer Certification: The employer or authorized agent signs and dates, certifying that they have examined the documents and that the employee appears authorized to work.
Supplement B – Reverification and Rehire
This section addresses situations where an employee’s work authorization expires or if the employee is rehired. Reverification is required before the employment authorization expiration date. Rehires within three years can often utilize Supplement B; beyond that, a new Form I-9 is necessary.
E-Verify: Purpose and Impact on Form I-9 Requirements
E-Verify is a free online system that allows employers to verify the eligibility of their employees to work in the United States. Participation is voluntary for most employers, except in certain states mandating its use. When using E-Verify, there are additional requirements added to the Form I-9:
- Social Security Number (SSN): Employees must provide their SSN in Section 1 of Form I-9 if they have one. If they’ve applied but haven’t received it, they should leave it blank, update it upon receipt, and initial and date the change. Crucially, they can start working while awaiting their SSN if they can provide acceptable identity and employment authorization documents to complete Form I-9.
- Contact Information: Providing an email address and phone number allows employees to receive updates on their E-Verify case status. In the event of a TNC, the E-Verify system will send information on the steps required to resolve the TNC.
- Form I-9 List B Document Requirement: Employers can only accept List B documents that include a photograph, regardless of the employee’s age or disability status. This is a crucial point to observe since many List B documents do not include a photo.
- Document Retention: E-Verify participating employers must retain copies of presented employee documents, specifically US Passports, Passport Cards, Permanent Resident Cards (Green Cards), and Employment Authorization Documents (EADs). If employers copy additional documents beyond these E-Verify requirements, they must apply this policy consistently to all employees during Form I-9 completion.
Common Mistakes and How to Avoid Them
Here is our list of common mistakes employers make when managing the requirements of the Form I-9 process:
1) Incomplete or Inaccurate Information
The accuracy of the I-9 form is paramount. Both the employee and employer sections demand meticulous attention to detail. Even seemingly minor errors, such as a misspelled name, an incorrect date, or a missing signature, can result in a failed audit from Immigration and Customs Enforcement (ICE). These failures can result in significant fines and penalties for the employer. To avoid this, employers should provide clear instructions to employees on completing the form accurately, offering assistance as needed. Employers should also carefully review every completed form before filing it, double-checking all entries against supporting documents. Employee input should be carefully verified, and any discrepancies should be addressed immediately and corrected with the employee’s input. Proactive error prevention is far more efficient than corrective action after an audit.
2) Missing Deadlines
The I-9 process operates under strict time constraints. Employees must complete their portion of the form within three business days of commencing employment. Employers then have a short timeframe to inspect the documents presented, verify the employee’s identity and eligibility to work in the United States, and complete their form section. Failure to meet these deadlines, whether for the employee’s portion or the employer’s, constitutes a significant I-9 violation. Employers should establish a clear process for timely I-9 completion, possibly including a checklist or automated reminders. They must also educate employees on the importance of timely completion. Maintaining a detailed record of when forms were completed and reviewed is vital for demonstrating compliance during an audit.
3) Improper Document Review
Careless document review is a frequent source of I-9 violations. Employers must only accept documents from Lists A or B and C listed in the I-9 and never request specific documents based on assumed nationality or immigration status. Photocopies are generally not acceptable, with the sole exception of certified birth certificates. Additionally, documents cannot be rejected because of an upcoming expiration date so long as they are valid at the time of hire. Employers should receive proper I-9 training to recognize acceptable documents. They should create a clear and consistent procedure for reviewing documents, avoiding biases, and ensuring all acceptable documents are treated equally. Maintaining copies of the provided documents can help protect the employer from accusations of improper review.
4) Retention Issues
The retention period for I-9 forms is crucial to compliance. Employers must keep completed I-9 forms for either three years after the date of hire or one year after the employee’s termination, whichever is later. This means the employer must maintain a secure and organized system for storing these forms, which are readily accessible for audit purposes. Simply storing the forms isn’t enough; a robust system for tracking employee records alongside their corresponding I-9s is vital. Failing to retain these forms appropriately—or losing them—leaves the employer vulnerable to substantial penalties. Employers should implement a designated retention system, possibly a dedicated file or digital storage system with appropriate access controls, to ensure that all I-9 forms are stored correctly for the legally required duration.
5) Discrimination
The I-9 process must be conducted without bias. This means all employees should be treated equally during the I-9 process, regardless of race, ethnicity, or national origin. Employers must accept any document from the acceptable lists without preference or judgment. Any suggestion of discriminatory practices, even unintentional, can result in severe penalties. Employers should ensure their I-9 procedures are consistent and fair to all employees. Providing training for all involved in the I-9 process on fair hiring practices and anti-discrimination laws is crucial to prevent intentional and unintentional violations.
Using Software for Managing Solutions for Form I-9 Requirements
Essium’s onboarding software, Xenqu, significantly alleviates the challenges associated with I-9/E-Verify compliance in several key ways:
Streamlined Form I-9 Completion and Management
Xenqu’s electronic I-9 form guides employees through the process, minimizing errors and ensuring accuracy. The system data entries match the expectation set with the selected citizenship status, reducing downstream mistakes during document review. Signatures are collected electronically, and each step is logged, enabling easy audits in the future.
Integration with E-Verify
Xenqu directly integrates with E-Verify, further simplifying the process. The platform ensures the employee provides the necessary information (SSN) for E-Verify submission and keeps a record of the E-Verify case number, streamlining the tracking and management of E-Verify results. This integrated approach saves significant time and minimizes the risk of errors in data entry for E-Verify.
Reduced Risk of Errors and Non-Compliance
Xenqu’s automated features minimize human error. The platform’s built-in checks and validations ensure the I-9 forms are completed accurately, reducing the likelihood of non-compliance issues leading to potential fines and penalties. Automated reminders ensure timely completion and review of I-9 forms by both employers and employees.
Improved Efficiency and Compliance
Essium’s solution reduces the administrative burden of I-9 management. The automated features free up HR and recruiting teams to focus on other essential tasks, ensuring efficient onboarding processing while adhering to compliance regulations.
Secure Document Storage
Xenqu provides secure, cloud-based storage for all I-9 and E-Verify forms, notices, and documentation, ensuring compliance with retention requirements and safeguarding sensitive employee data. Access controls ensure that only authorized personnel can view and modify these documents.
Conclusion
Form I-9 compliance is paramount for any U.S. employer. Understanding the requirements, avoiding common pitfalls, and leveraging technological solutions are essential for successful compliance. By utilizing software designed to streamline the I-9 and E-Verify processes, businesses can minimize risk, reduce administrative burden, and ensure a legally sound hiring process. Remember, consulting with an immigration attorney or a compliance expert is always recommended for complex situations or when seeking clarification on specific aspects of the I-9 process.
