The “Employment Eligibility Verification” form, commonly known as Form I-9, is the federal government’s official mechanism to verify an employee’s identity and authorization to work in the United States. Strict rules govern the completion and accuracy of I-9, and failure to follow them can place an employer in a difficult position. Here are some key points to keep in mind when completing I-9:

Complete I-9 within three business days of an employee beginning work.

Section 1 is completed by the employee. If the employee requires assistance filling out this section, the individual providing help must complete the Preparer/Translator Supplement and attach it to I-9. For employers not enrolled in E-Verify, the employee may choose to provide their Social Security number (SSN) or leave that field blank. Employers should also keep in mind that requiring specific documents containing an employee’s SSN may constitute unlawful discrimination under federal law.

Section 2 is completed by the employer. The employee must present document(s) from the List of Acceptable Documents — and importantly, the employee, not the employer, chooses which documents to provide. Once the documents are presented, the employer must verify that they comply with the List of Acceptable Documents. An employee may present one document from List A, or one document each from List B and List C. When reviewing these documents, employers should ask themselves four key questions:

Is the document listed on the List of Acceptable Documents, and does it comply with the required combination?
Is the document current and unexpired?
Does the document reasonably appear to be genuine?
Does the document reasonably relate to the person presenting it?

If the employer can answer “yes” to all four questions, their verification responsibility under Section 2 is complete.

When should an employer reverify?

Employers should never reverify the employment eligibility of U.S. citizens or noncitizen nationals, and do not need to reverify upon the expiration of a U.S. passport, U.S. passport card, Permanent Resident Card (“green card”), or any List B identity document. Reverification applies only to employees with temporary work authorization and must be completed no later than the expiration date of the employee’s employment authorization or documentation — unless the employee’s work authorization has been automatically extended under specific federal rules. Reverification is completed on Supplement B of Form I-9.

Notice of inspection

The Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) is authorized to audit an employer’s Form I-9 records at any time.

If USCIS identifies compliance issues, employers are typically given 10 business days to correct them. However, substantive violations or evidence of knowing employment of unauthorized workers can result in monetary fines or more severe penalties. Accordingly, it is critical that employers maintain accurate, up-to-date I-9 records and routinely review their compliance practices.

The value of an internal Form I-9 audit

There is a long list of things most employers would rather do than dig into the “I-9 folder” for an internal audit. The process can be tedious, confusing, and downright frustrating. However, conducting an internal I-9 audit is one of the best ways to prepare for — and protect against — a real USCIS inspection. It allows an employer to identify and correct issues before they become liabilities and demonstrates to investigators a good faith effort to comply with the law despite the complexity of the requirements. Here are some practical tips to help minimize the frustration and make an audit process more efficient:

When conducting an audit, employers can either review all I-9 forms or conduct a sampling of forms. If opting for a sample review, ensure that the selection process is nondiscriminatory — do not single out employees by national origin, name, citizenship status, or any other identifying characteristic. The goal is to ensure consistency and fairness across the workplace.

Be transparent with employees and explain the scope of the audit and the reason for the audit.

If there is a deficiency in Section 1, notify the employee in private and have the person correct the deficiency.

The employer will correct any deficiency discovered in Section 2.

Corrections can be made by drawing a line through the incorrect information, entering the correct/missing information, and initialing/dating the correction or missing information. Attach a written explanation for why information was missing or needed correction. Do not backdate forms.

While I-9 compliance can feel burdensome, a committed and thoughtful internal audit process can transform it into a proactive safeguard and give employers a certain peace of mind in the face of potential challenges and inspections.

Abby Fitts is an attorney at Barran Liebman. She advises employers regarding a full range of employment matters, including handbooks and policies. Contact her at 503-276-2190 or [email protected].