A 'Top Ten' List of Things to Remember For I-9 Compliance

Although the number of USCIS audits and investigations in connection with I-9's, the Employment Eligibility Verification form that must be completed for each employee, has dropped significantly over the past several years, employers need to continue to be vigilant with respect to I-9's. We must recognize that the tragic events of 9/11 have raised the importance of properly identifying foreign nationals who are in the United States. One of the primary purposes of the I-9 process is to register the identity of each and every new employee. Thus, the USCIS will view the I-9 process as an important component to enable federal authorities to track individuals and to pinpoint their identities. It therefore seems quite logical to assume that Congress and the USCIS will place increased importance on a company's compliance with the I-9 requirements.

In representing and advising employers in connection with I-9 compliance, we have developed a "top ten" list of issues, suggestions and recommendations to help employers implement changes in their I-9 procedures, with the goal of assuring greater compliance. This list was developed based on common mistakes employers make, as well as from comments from USCIS Inspectors based on their experiences in auditing companies in a wide variety of industries.

1. Make sure that each employee receives three pages of the I-9. Each person who is required to complete an I-9 is supposed to receive three pages. Providing this documentation reinforces the fact that the employee has the option of choosing which documentation to present to the employer in order to complete Section 2 of the I-9.
2. Keep it simple and stick to the description of the documents provided on the third page of the I-9. Employers should strictly abide by the directions for acceptable documentation per the third page of the I-9 and not read further requirements into these instructions.
3. The "3-day rule" does not relieve the employer from its obligation to complete the I-9 on the first day of employment. The employee has three business days in order to comply with Section 2 of the I-9, but the top portion of the I-9 (Section 1) must be completed in its entirety on the first day of work. An employee who completes Section 1 can commence work immediately even if he or she does not have the documents available to complete Section 2 for up to three business days.
4. Attaching copies of documents does not count. Employers are not obligated to keep copies of the documents presented by employees in completing Section 2, and it is our recommendation not to keep copies of the presented documents. Employers who keep copies of documents often fail to fill out all of the information in Section 2. It is a violation of USCIS rules to fail to fill out Section 2 even if copies of acceptable documents are attached.
5. Shorthand document descriptions and abbreviations not acceptable in Section 2. Because many employers will use abbreviations that are inaccurate or subject to different interpretations, the USCIS mandates that clear and full descriptions of the presented documents be written out in Lists A, B and/or C as it may help them with other aspects of their investigations that go beyond employer compliance with USCIS rules.
6. The I-9 task can be delegated. Employers should be aware that they can "farm out" their obligation to review the documents of a new employee. This is especially helpful for individual employees who may work out of their homes or in remote locations.
7. Don't be afraid to make corrections – but don't fudge the facts. The USCIS recognizes that employers will make mistakes on I-9's and looks favorably on employers' efforts to do their own internal audits. If employers go back to make corrections as part of a self-audit, efforts should be made to make sure that any updates or corrections are identified by the date on which they were made.
8. Keep the I-9 files separate and segregated from employee files and other employment records. It is important for employers to recognize that I-9's can be requested by the EEOC, the U.S. Department of Labor, the Office of Special Counsel. It is, therefore, best to keep I-9's in a central location for a company or at a particular facility.
9. Make sure that the person's citizenship status or eligibility to work is properly completed in Section 1. The lack of proper or complete information in Section 1 of the I-9 to confirm whether the person is a citizen of the United States, a lawful permanent resident, or an alien authorized to work is a typical problem. Many employees fail to check any of the boxes or others place check marks between the boxes or that cross over two or all three of the boxes. Employers must keep in mind that this portion of the I-9 must be completed on the first date of employment. The lack of complete information in this section of the I-9 hampers USCIS investigations, and is therefore viewed as a significant problem by USCIS investigators.
10. Don't forget to update and re-verify, when required. Many employers have failed to implement a "tickler" system to track I-9's that will need to be updated for re-verification of work authorization. A company must have a feasible method that tracks all I-9's that will require updating and re-verification.

By incorporating measures to address the issues in this "top ten" list, employers will go a long way in improving their I-9 compliance. To assure greater consistency and accuracy, it is advisable to centralize this function so that a relatively small number of people deal with the documentation and paperwork on a regular basis. In addition, it is imperative to incorporate regular training on I-9 issues for the personnel who will be completing the I-9's and involved in record retention.