Proper I-9 Procedures

by Anne Zachritz

            In the past few years, the U.S. Immigration and Customs Enforcement (ICE) has significantly increased I-9 audits and is increasingly bringing cases against employers under the criminal code, rather than civil penalties.  The focus on employers, rather than employees, is to target the root cause of illegal immigration.

            The ramifications to employers for I-9 violations are significant. Poor documentation alone may result in civil penalties of $1,000.00 per worker, and a $10,000.00 per worker fine may be imposed on employers which knowingly hired an illegal immigrant. 

            Employers should follow these steps to minimize the risk of liability as well as discrimination complaints:

1.     Require all new hires to complete and sign Section 1 of the I-9 on their first day of work.

2.     Do not ask an applicant to complete an I-9 prior to making a job offer. Applicants who ultimately are not hired can use I-9 information to allege that you discriminated against them.

3.     Review employee documents to make sure they are acceptable documents as set forth on the most current version of the I-9’s list of acceptable documents and that they appear genuine.  (www.uscis.gov/I-9.)

4.     Do not ask new hires for any particular documents or for more documents than the I-9 requires.  The employee chooses the documents, not you.

5.     Establish a consistent procedure for completing I-9s, and educate your hiring managers on that procedure.

6.     Make and retain copies of all I-9 documentation provided.

7.     Keep a tickler file to follow up on expiring documents that limit the employee’s authorization to work. 

8.     Retain I-9s and copies of documents for three years after the employee’s hire date or one year after termination, whichever comes later.

9.     Do not file the I-9 in an employee’s personnel file.  To protect against discrimination claims, keep I-9s and supporting documentation in a separate file.

For more information about I-9 compliance or to discuss an I-9 audit, please contact Anne Zachritz at 272-9241 or aezachritz@andrewsdavis.com.  If you would like to learn more about employers’ legal liability for I-9 violations, read her other blog on the matter here.


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