I-9 Record Keeping

The increased enforcement of employment authorization rules and investigations into unfair immigration related employment practices make this an important time for employers to review compliance under the Immigration Reform and Control Act of 1986 (IRCA). IRCA requires all employers to verify the employment eligibility of new employees at the time of hiring without discriminating against employees with respect to their national origin, citizenship or immigration status. If your company has not established a hiring policy and standards for interviewing and conducting the Form I-9 employment eligibility verification as required by IRCA, this is the time to do so. If your company has these policies and standards in place, it is important to make certain that they are being applied consistently and uniformly to all employees.

The most critical elements of a proper IRCA compliance policy are:

Establishing a written employment eligibility verification policy for use by all employees with hiring authority.

Ensuring that existing hiring policies, application forms, and offer letters are consistent with the employment eligibility verification policies in place.

Assigning and centralizing IRCA compliance oversight to a designated person.

Providing training to employees with hiring authority regarding this policy and the importance of its consistent and uniform implementation.

Auditing existing Forms I-9 for compliance: Any errors or oversights should be corrected in red ink and initialed and dated. Retain the old Form I-9 and replace it with a new form.

Employers are also advised to remember the following:

The United States government provides an instructive booklet entitled "Handbook for Employers: Instructions for Completing Form I-9." (This is Form M-274, and copies may be obtained at local offices of the Board of Citizenship and Immigration Services (formerly known as "INS") or through the Government Printing Office.) At a minimum, an employer’s IRCA compliance officer should familiarize him/herself with this handbook.

Section 1 of the Form I-9 must be completed at the time the employee begins work. However, an employer must provide a new hire with three business days after the date of hire to complete Section 2.

Section 2 of the Form I-9 requires the employee to provide to the employer for review documents that verify the identity and employment eligibility of the employee. The I-9 contains a "List of Acceptable Documents" from three different lists: List A, List B, and List C. The employer may not demand that specific documents be provided — the employee has the choice of using any documents that are on the Lists.

The employer must sign and date an attestation that the employer or authorized representative has examined the document(s) presented, that they appeared genuine and related to the employee, and that the employee is eligible to work in the U.S. based on such documents. Because the law requires an actual review of the documents, the I-9 process may not be done electronically. While the United States government does not expect employers to conduct independent investigations into the authenticity of identity and eligibility documents, it does require employers to act reasonably and in good faith when deciding if a document is legitimate on its face.

The employer has the option to maintain a copy of all documents presented by employees for I-9 purposes, but this decision must be implemented uniformly.

Given the current economic environment, it is easy to forget the importance of conducting a Form I-9 self audit. However, taking the time to do so now can save an employer huge headaches down the road.