Time to Do I-9 Spring Cleaning
March 29, 2013
Change is afoot this spring, but it's nothing you can't handle. The government's new Form I-9 (PDF), now expanded to two pages as we reported March 14, becomes mandatory for all employers starting May 8. We recommend getting acquainted with the new form now, as May is right around the corner.
Employers also should bear in mind the following best-practice tips:
As with any spring cleaning endeavor, getting rid of the clutter is helpful.
- Retire old I-9s that the company is no longer required to maintain.
- An employer must retain the I-9 for an employee who has left the company for a minimum of three years beyond the date she began to work for pay, or for one year beyond her last date of employment, whichever is later. A handy I-9 calculator is available here.
- Retiring I-9s through regular internal audits will reduce exposure to liability in the event that ICE comes knocking.
Internal audits that result in corrective action properly taken are a sign of good-faith compliance.
- Remember to initial and date for each corrective action taken.
- Evaluate your I-9 protocols and consider whether tweaks are needed. Document when and why any change in process was made with a signed and dated note to the general I-9 file. Also retain copies of any government memos on which procedural changes were based.
Start perusing the revised M-274 Handbook for Employers (PDF) — it's a searchable PDF that is actually helpful for completing I-9s, and the government treats it as law, even though it is not.
- Note that Section 1 still can be completed in advance of the first date of employment, as early as the date when the employee has accepted the job offer, but Sections 2 and 3 cannot. Sections 2 and 3 must be completed within the first three days of employment.
- Employers still must examine the original documents presented by the employee, not faxes or PDFs. For employers with small offices in distant locations and/or remote workers, it is possible to hire a reputable agent to complete the I-9.
- Employers should not split up responsibilities in reviewing sections . The same trained representative of the employer should complete the entire form and own the process.
- It is optional whether the employee chooses to record her Social Security number in Section 1, unless the employer is an E-Verify employer, in which case it is mandatory.
Be careful not to steer your employees toward presenting particular documents, even if you think you are being helpful, as this may lead to claims of document abuse or of national-origin or other forms of discrimination.
- Employees may choose to present any document from List A, establishing both identity and work authorization; or a combination of any document from List B, establishing identity, AND any document from List C, establishing work authorization.
As always, remember to track employment authorization expiration dates and reverify as needed!
Please contact us if you would like assistance with I-9s, internal audits and immigration compliance.