I-9 Basics

Steven Cesare, Ph.D.

A business owner from Tennessee called me the other day to say that several landscapers in his vicinity have recently been audited by Immigration and Customs Enforcement (ICE) and he believes that since his company has not yet been audited, his competitors will tell ICE to audit his company. To that end, he was extremely nervous about his I-9 Forms and processes. Here are some I-9 basics that I told him to consider:

Use the correct version of the I-9 Form. At the time of this conversation, the current I-9 Form publication date is 10/21/2019 which is found in the bottom left margin on Page 1 of the I-9 Form.
The Spanish version of the I-9 Form is only to be used in Puerto Rico, not the USA.
Print out a Payroll Register of every company employee who received a paycheck last week. Cross-reference the Payroll Register with all active I-9 Forms on file. Every employee (including the owner) hired after November 6, 1986, must have a completed I-9 Form on file.
Company staff who complete the I-9 Form and related process should be properly trained on both.
Employees must complete Section 1 in its entirety by no later than their first day of work. The only time an applicant can complete an I-9 Form is after s/he signs and returns a conditional job offer, but not before then.
If the company is not using E-Verify, the employee is not obligated to enter the Social Security number in Section 1; however, if the company is utilizing E-Verify, a Social Security number is required.
The employee must sign and date Section 1.
Today’s date in Section 1 should correspond to the “employee’s first day of employment” in Section 2.
If the employee requires assistance in completing Section 1, make sure the appropriate information is added in the Preparer and/or Translator Certification area on the bottom of Page 1.
The employer is responsible for completing Section 2 in its entirety within the three business days of the employee’s first day of work. Thus, if the employee begins work on Monday and completes Section 1 of the I-9 Form on that same day, the employer must complete Section 2 of that employee’s I-9 Form by no later than close of business on Thursday.
Don’t forget to complete the information labeled “Employee Info from Section 1” at the top of Page 2.
Regarding Section 2, employers cannot require employees to give them certain documents (e.g., driver’s license and a social security card).
Employees must submit one document from the List of Acceptable Documents for List A, or one document from the List of Acceptable Documents for List B and one document from the List of Acceptable Documents from List C.
Employers must only accept documents identified on the List of Acceptable Documents.
Employers must not accept any document that has exceeded its expiration date.
Employers must only accept original documents; photocopies are not acceptable.
Employers must accept documents that “reasonably appear to be genuine” on their faces. If a new employee provides a document that does not reasonably appear to be genuine (e.g., wrong name, font, color, wording, or format), the employer must reject that document.
Section 3 is only completed by the company when certain documents must be reverified or if an employee has been rehired.
If an employee is rehired within three years of dismissal and has the same Section 2 documents, the company can use the employee’s original I-9 Form on file; if the employee returns to the company beyond three years of dismissal, the employee must complete a new I-9 Form.
Never use “white-out” to edit an I-9 Form; instead, when making edits, draw a line with a blue pen through the inaccurate information, add the correct information, and then put the editor’s initials and date of the change in the margin.
All Active Employee I-9 Forms should be kept in a 3-ring binder organized alphabetically by last name.
All Inactive Employee I-9 Forms should be kept in a separate 3-ring binder organized chronologically by destruction date: The latter of (1) one-year post-termination date, or (2) three years post-hire.
Have an external party conduct an I-9 audit each year.