I-9 FORM REFRESHER

Steven Cesare, Ph.D.

A business owner from Tennessee called me the other day to talk about the most popular human resources topic nowadays: immigration. The much-anticipated ICE audits are well underway, and as such, many anxious business owners are taking pre-emptive steps to re-examine the legitimacy of their employees’ work authorization status.

As is commonly known, the employer or authorized representative, must either physically examine, or examine consistent with an alternative procedure authorized by the Department of Homeland Security, the original, acceptable, and unexpired documentation the employee presents from the Lists of Acceptable Documents to complete the applicable document fields in Section 2. A document is acceptable if it reasonably appears to be genuine and to relate to the person presenting it. Photocopies, except for certified copies of birth certificates, are not acceptable for I-9 Form. Employees must present one selection from List A or a combination of one selection from List B and one selection from List C.

Beyond those fundamentals, here are some key points to further ensure the accuracy of your I-9 Forms.

Only use the I-9 Form with a date of 8/1/2023 found in the bottom left corner of Page 1 of the I-9 Form; usage of any previous I-9 Form version prior to 8/1/2023, from that date forward, is invalid.
All new employees hired since 8/1/2023, must have this version of the I-9 Form completed on them.
Employers do not have to complete this new form on any current employees.
An employer must not complete an I-9 Form on an independent contractor.
Never ask a “job applicant” to complete an I-9 Form; only “employees” (i.e., having received a conditional job offer) are legally permitted to complete an I-9 Form.
The Spanish-language version of I-9 Form is not acceptable in the USA; it is only to be used by employers located in Puerto Rico.
Section 1 of the I-9 Form must be completed by the employee after s/he has received a conditional job offer letter, or at the latest, on his/her first day of employment.
Thus, in most cases, Today’s Date in Section 1 must match the First Day of Employment located in Section 2.
Section 2 of the I-9 Form must be completed within three days of the employee’s first day of employment; thus, if an employee begins a new job on Monday, March 17th, Section 2 of the I-9 Form must be completed by the employer no later than Thursday, March 20^th.
Employers can only include those documents found on the Lists of Acceptable Documents page of the I-9 Form to satisfy Section 2 requirements.
However, employers cannot demand specific documentation found on the Lists of Acceptable Documents page, from employees, verifying their eligibility of employment.
E-Verify employers must ensure that they only accept List B documents that contain a photograph.
In most cases, an employer is not required to keep a copy of the documents presented in Section 2.
However, employers participating in E-Verify are required to retain a copy of certain documents (e.g., U.S. Passport, passport card, Permanent Resident Card (also called a Green Card), or Employment Authorization Document (EAD)).
An employer may retain the actual I-9 Form on paper, microfilm or microfiche, or electronically.
Employers must ensure that preparers or translators who assist an employee in completing Section 1 of the I-9 Form complete Supplement A (Preparer and/or Translator Certification for Section 1), and retain it with the employee’s I-9 Form.
Employers must keep I-9 Forms on all former employees for either one-year post-termination date or three years post hire date, whichever is longer.
If, through a merger or acquisition, an employer acquires employees from the previous employer, an employer can treat the acquired employees as new hires and complete a new Form I-9 for each person; or the employer can consider them as continuing in employment and retain the previous I-9 Forms.
If an employer rehires a former employee within 3 years of the date that a previous I-9 Form was completed, the employer may either complete a new I-9 Form for the employee or complete Supplement B of the previously-completed I-9 Form.
If an employer rehires a former employee after more than 3 years of separation, the employer must complete a new I-9 Form for that employee.

Conduct an I-9 Audit promptly; be thorough, accurate, and legal. Eliminate all employment risks from your company now, especially if YOU have any “personal knowledge” of their illegitimate work authorization status.

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