Nine Tips to Ensure Form I-9 Compliance in Case of a Site Audit

All U.S. employers must ensure Form I-9 compliance for every individual they hire for employment in the United States, with very few and rare exceptions—this includes both US citizens and noncitizens. Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Below are nine tips to help ensure Form I-9 compliance:

  1. Have all new employees complete Section 1 of Form 1-9 by their first day of employment.

While Section 1 must be completed by the employee or new hire by his/her first day of employment, it cannot be completed before the individual has received and accepted their job offer.

  1. Beginning September 18, 2017, employers must implement use of the new version of Form 1-9.

In July, U.S. Citizenship and Immigration Services (USCIS) released an updated revised version (edition 07/17/17) of Form I-9. The latest edition includes changes to the Form’s instructions and its List of Acceptable Documents, among others. Its use has been mandatory for employers since September 18, 2017.

  1. You (the employer) must complete Section 2 of Form 1-9 within three business days of the new employee’s first date of employment.

If an employee is being hired for less than three business days, you must complete Section 2 no later than the first day of employment.

  1. When employees leave, Form I-9 must be maintained for three years after the hire date OR one year after termination, whichever is later.

You should not file Form I-9s with USCIS or U.S. Immigrations and Customs Enforcement (ICE); however, in the event of an inspection by ICE, you must have forms available for all employees within the required maintenance period. Investigating officers will typically ask for a current payroll list to confirm the company’s existing employee population, as well.

  1. Employers must assess I-9 requirements in the event of a corporate reorganization or restructuring, including a merger or acquisition.

Employers who have acquired or have merged with another company may choose how they wish to treat employees who are continuing in employment with the related, successor, or reorganized employer. They may either choose to treat them as “new hires,” meaning that a new Form I-9 must be completed for all employees, or they may choose to treat them as “continuing in employment.”

The latter permits the employer to obtain and maintain the previously completed Form I-9s for each employee. Employers who choose the “continuing in employment” route assume any risks or liabilities of the previous employer in relation to the I-9s, such as errors or omissions, or missing forms. Best practices suggest that employers perform a due diligence audit in the event of a corporate change.

  1. In the event of an inspection, ICE will generally arrive and present an I-9 Notice of Inspection (NOI) outlining documents it needs to inspect.

The NOI will generally require the employer to present the requested documentation within 72 hours, unless an extension is granted. Documents often requested include (but aren’t limited to) Form 1-9s for all or a selection of employees, payroll records, Articles of Incorporation, business licenses, names of any contractors or subcontractors and proof of E-Verify enrollment (if any).

  1. Work with your immigration attorney to develop a tailored plan to ensure your company is prepared for an audit.

Suggestions to ensure Form I-9 compliance (and overall compliance) include performing regular internal audits, utilizing technology to track the collection of and store documentation and educating sponsored and unsponsored employees on how to respond in case of a site visit.

  1. When in doubt about Form I-9 compliance, reference USCIS Handbook for Employers M-274.

The Handbook for Employers includes USCIS guidance on employer best practices for completing, storing and maintaining Form I-9s. Any questions that you might still have, such as correcting an I-9 can be found there. The handbook is updated semi-regularly, so make sure you are accessing the most recent version before utilizing it as a resource.

  1. When in doubt about best practices for your global immigration program in general, reference our compliance hub.

Among its resources are our Compliance in Immigration and Global Mobility Guide, compliance checklists and information about how to prepare your company for a site audit.

It's easy to get lost in the ever-changing world of immigration policy. Our new Immigration Compliance Hub brings you the latest in compliance news and regulations, all in one place.

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