Employer Compliance

One of the most important steps that an employer can take to reduce the risk of enforcement verification liability is to train employees engaged in I-9 compliance and to ensure that all I-9s are completed in an appropriate and timely manner. Because immigration laws, regulations, interpretations, and documents change frequently, regular annual training, at a minimum, is recommended.

Employers must have a completed I-9 for all employees hired after November 6, 1986. The current version of the form bears a revision date of June 5, 2007. No previous editions are accepted.

During the I-9 process, the employer verifies that the employee is authorized to work by reviewing the document(s) presented from a list of acceptable documents. The I-9 provides for three lists of documents. List A documents establish both identity and employment eligibility. List B documents establish identity and List C documents establish employment eligibility. The employee is to provide one List A document or two documents, one from List B and one from List C. In 2007, the lists were amended to decrease the number of allowable documents. The new instructions provide that the employee is not obligated to provide his or her Social Security number in section one of the Form I-9, unless the employer is enrolled in E-verify.

Determining the work eligibility of foreign nationals is difficult because it requires significant understanding of immigration laws and regulations. Many newly arrived foreign nationals present an unexpired foreign passport with an unexpired arrival-departure record, Form I-94,16 which authorizes work in a particular job opportunity. This is an acceptable combination of List A documents if the class of admission allows for work with the employer in a specific job. Some of the most common I-94 classes of admission that authorize temporary employment include: H-1B, H-2A, H-2B, L-1A, L-1B, O-1, O-2, P-1, P-2, P-3, E-1, and E-2. Foreign nationals whose I-94 shows admission as refugees or asylees are authorized to work for any employer in any job opportunity.

Certain foreign nationals admitted as L-2, E-2, J-2, F-1, M-1, and K status are entitled to apply for an employment authorization document (Form I-766, an acceptable combination of List A documents), which if granted allows the person to work for any employer in any job opportunity for as long as the work authorization is valid.

The employee must present original documents, except in certain circumstances when a receipt may be accepted as noted. A receipt or application for a new document following the expiration of a previous document is not an acceptable receipt.

I-9s that need to be reverified because the employee has limited work authorization should be filed according to the expiration dates of the employment documents provided by the employee.

I-9s should be filed separately from personnel records for several reasons, including ease of internal auditing and ease of retrieval in the case of a government audit or inspection. I-9s should be filed in three groups: terminated employees, current employees, and employees that need to be reverified.

Employers must retain I-9s for three years from the date of the employee’s hire or one year from the date employment ends, whichever is later. I-9 forms for terminated employees should be filed in order of eligible purge date for administrative convenience. The regulations require that an employer be given three business days to comply with a request for inspection of I-9s. No subpoena or warrant is required. A refusal or delay in presenting the forms for inspection could be considered a violation of the retention requirements. It is often possible to negotiate an extension of time for the production of the I-9s.