A refresher on handling Form I-9 and possible inspections

Spring has arrived and now is a great time for employers to review their Form I-9 practices and conduct any necessary “spring cleaning” to bring their business into compliance and prepare for potential audits or investigations.

With all the training and paperwork that comes along with onboarding new employees, some employers may forget the importance of proper completion and retention of documents such as Form I-9. However, ensuring that Form I-9 is completed and retained properly should be a top priority for employers, which may find themselves in deep water if/when faced with an inspection or audit. Consider the following key information about Form I-9 as well as audits and inspections.

Form I-9 requirements

Employers are required to verify the identity and employment eligibility of their employees. To comply with this requirement, employers must properly complete and retain a Form I-9 for each employee they hire.

Form I-9 should be filled out with certain information to verify an employee’s identity and authorization to work. Within the first three days of a new employee being hired, the person must also provide supporting documentation for the employer to review and verify. It is crucial for employers to understand their role in reviewing documentation presented by an employee when completing Form I-9, especially because the duty to verify an individual’s employment authorization is coupled with a duty to refrain from discriminating against employees or applicants based on national origin, citizenship, or immigration status.

When reviewing documentation, an employer or its authorized representative’s role is to examine and confirm that the documentation presented by the employee reasonably appears to be genuine and to relate to the individual presenting it. Employers cannot require an employee to present a specific document or specify which documents employees must present from the Form I-9 list of acceptable documents. Employers must allow employees to decide which document or documents to present. In most circumstances, employers are required to physically examine the documentation provided by the employee in the person’s presence.

A Form I-9 must be kept for three years after the employee’s date of hire, or for one year after the employee leaves, whichever is later.

Form I-9 audits and inspections

The Department of Homeland Security has the authority to conduct inspections to review Form I-9s and ensure that an employer has complied with its obligations to verify the identity and employment authorization of each employee. The inspections are generally conducted through U.S. Immigration and Customs Enforcement and Homeland Security Investigations.

Prior to an I-9 audit or investigation, an employer will receive a Notice of Inspection via mail. This notice should be passed along to employees and, if contemplated in a collective bargaining agreement, their union representatives. Following notice, employers must present their Form I-9s and copies of any related supporting documentation for inspection within three business days.

Given how quickly the inspection process occurs, employers may wish to consider conducting internal audits of their Form I-9s and make sure they are storing and retaining Form I-9s in an accessible and organized manner so records can be easily located and provided in the event of an inspection.

When conducting an internal audit, employers should watch for potential errors or omissions in each employee’s Form I-9. In some circumstances, necessary corrections may be made by drawing a line through the incorrect information, entering the correct information, and dating and initialing the correction. Note that certain information may be corrected only by the employee. If entire sections are missing or incorrect, there are circumstances where it would be warranted to complete a new Form I-9. However, there are strict rules about reverifying employment authorization for current employees, and reverification is only permissible under certain limited circumstances. Therefore, employers conducting internal audits should take care not to intentionally or accidentally conduct any impermissible reverifications.

Employers that choose to conduct an internal audit must ensure that they either audit their entire workforce or define the scope of the audit in a neutral and nondiscriminatory way. And as with the initial documentation review, employers may not request specific documents for verification purposes when conducting an internal audit.

Takeaways

Employers should review their practices surrounding the completion and retention of Form I-9 to ensure compliance with applicable laws and in preparation for potential audits. Employers conducting internal audits should also ensure they do not run afoul of applicable law and reach out to counsel with questions or for assistance in conducting internal audits or responding to a Notice of Inspection.

Natalie Pattison is a Barran Liebman attorney. She counsels and represents employers in a wide range of employment and labor matters.

Lex Shvartsmann is a law clerk with Barran Liebman. She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks.