Breaking Down the Form I-9

In July 2009, U.S. Immigration and Customs Enforcement announced that it sent notices to 652 businesses nationwide informing them that they have been targeted for Form I-9 audits. The audits will entail inspection of hiring records to determine whether the employers are in compliance.

While on its face the Form I-9 appears simple, it is full of quirks and intricacies that are often a source of confusion for employers. That is why it is imperative that employers take great care to ensure that the form is completed accurately, filed on time, and retained for the requisite time period.

The Form I-9 is a one-page form that employees complete to verify their identity and prove that they are permitted to work in the U.S. It has three sections.

Section 1 asks the employee to complete basic biographical information and certify that he or she is a U.S. citizen, permanent resident, or authorized to work under another status.

Section 2 is completed by the employer, which must verify, and attest under penalty of perjury, which documents an employee presented to prove the employee's identity and right to work and that the paperwork was completed in a timely manner. Employees may present items from List A in the instructions that prove both identity and authorization to work, or they may provide a combination of an identification document from List B and a document that confirms employment eligibility from List C.

Section 3 is used to reverify expiring employment authorization. It is reserved for employers who must occasionally update the Form I-9 if the employee is not authorized to permanently work in the U.S.

When presented with the supporting documents asked for by the Form I-9, an employer must accept them, as long as they appear to be reasonably genuine and to relate to the individual presenting them. It is important to note that an employer must not accept documents that do not reasonably appear to be genuine or to relate to the person presenting them. Due to a recent change in Form I-9 policy, expired documents and photocopies of supporting documents are no longer acceptable.

Many times, the Form I-9 process begins on the employee's first day of work, when the employee is asked to complete the first section of the Form I-9. The employee then has three days to provide the requisite supporting documents.

For Form I-9 purposes, an individual is not considered a rehire if the employee was on a leave of absence (paid or unpaid), the employee was temporarily laid off, or the employment is considered seasonal. In order to qualify as a rehire, however, a seasonal employee must have had a reasonable expectation of continued employment.

All employers are required to retain Forms I-9 for three years after the date employment begins or one year after the date of termination, whichever is later. Employers must be able to make Forms I-9 available for inspection if called upon by an officer of DHS or the U.S. Department of Labor. Failure to do so could result in the imposition of civil fines.