Dotting Your I's and Crossing Your T's — The Keys to Form I-9 Compliance

By Laura A. Rashedi and Catherine H. Thompson

The U.S. Immigration and Customs Enforcement (ICE) is issuing 180 Notices of Inspection that alert business owners in Louisiana, Mississippi, Alabama, Arkansas and Tennessee that ICE will be inspecting hiring records to determine if the businesses are in compliance with employment eligibility verification laws and regulations.

The audit notices to businesses in these five states come as part of the new comprehensive worksite enforcement strategy developed by ICE in 2009 to ensure a legal workforce. Furthermore, the initiative includes a commitment "to establishing a meaningful I-9 inspection program to promote compliance with the law."¹

This new inspection program underscores the importance for employers to properly complete a Form I-9 for every individual hired for employment in the United States. Employers should be aware of the common errors made in completing the Form I-9. Even the smallest error or omission (e.g. failure to date a signature or a stray marking) in the completion of the Form I-9 can result in citations from ICE. The Form I-9 includes three sections.

Section 1 of the form must be completed by the employee no later than the date on which the employment services begin. The employee must sign and attest, under penalty of perjury, that the information provided is true and correct.

Section 2 of the Form I-9 requires employers to review and verify documents provided by the employee to establish identity and employment authorization within three business days of the date employment begins. If an employee is unable to present an acceptable document (or documents), the employee must present a receipt of an application for an acceptable document. The valid documents must be presented within 90 days or other specified time. If an employee fails to provide acceptable documents to establish identify and employment authorization, an employer must terminate the employment or risk being subject to penalties for employing an unauthorized worker.

Section 3 of the Form I-9 pertains to updating or re-verification of an employee's identity and employment authorization. The employer must update and re-verify employment authorization when an employee's authorization expires and when an employee is rehired. If an item from List B of the Lists of Acceptable Documents expires, no re-verification is required. The re-verification must occur no later than the date that the original employment authorization expires. The employer may either complete Section 3 of the original Form I-9 or if a different acceptable document is used, a new Form I-9 should be completed and attached to the original Form I-9. If an employee is rehired within three years, the re-verification process does not require a new Form I-9. In order to avoid any difficulties and interruptions in employment, employers should develop a system for notifying employees in advance of the expiration of their employment authorization.

Finally, in order to be in compliance with federal laws, employers must retain the forms for three years after the date of hire or for one year after the employment is terminated, whichever is later.

If you have any questions about the contents of this article, please contact any attorney in Schiff Hardin's Labor and Employment group.

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