I-9s – How to Help Reduce Compliance Risks

The immigration form I-9 is required for the hiring of employees by all employers. Just like you get an application form, W-4, and benefit documents at the time of employment, the employer is also required to to make sure the employee is eligible to be hired through the completion of the current I-9 form. Failure to comply is $10,000 per occurrence, a risk most companies cannot afford to incur.


Remember that completion of the I-9 is after the employee has been hired. This is to avoid discrimination. So it is key that completing I-9 form is part of the on boarding process, not the hiring process.

The Burden of Compliance has Shifted

The federal government’s enforcement has moved from deportation of violators to penalizing the employer. These are really two sides of the same coin. Employer rules have been in place for a number of years and are currently being enforced. And of course, violations by employees may be illegal too, just not presently being aggressively enforced.

Considerations to help assure Compliance

Following are some considerations to help assure your company is compliant with these rules.

1)      Separate files should be maintained for all I-9 forms. Access should be limited to those with a need to know basis and importantly SHOULD NOT BE IN THE SAME FILE OR EVEN THE SAME FILE DRAWER AS OTHER EMPLOYMENT FILES AND DOCUMENTS.

2)      Did you use the right form when the employee was hired. Use of a wrong form (earlier version) than the one in effect when the employee was hired can result in a significant penalty of $10,000 per violation! (The current version expires 8/31/12)

3)      Do you keep photocopies of IDs for your files? This is generally not recommended, but if you do, you must keep them for all employees.

4)      How long do you keep I-9’s? This is more complex than you would think. If an employee was employed for over three years, you must keep the document for one year after termination. However, if an employee was employed less than three years, you must keep the form the greater of 3 years or one year after employment is terminated. Further, remember to move dead files to a secure area when employees leave the company.

Other Suggestions

Performing an I-9 audit or having all employees refile their I-9s is one solution to assuring compliance. This shows a good faith effort by the employer to compliance and using a later form than when an employee is hired is typically not an issue because of this.

Further I have H.R. experts in my network as well as employment attorneys that can help. Remember, the cost of compliance is significantly less than the penalty of $10,000 per violation. Invest in the effort and assure your company does not inadvertently end in this unenviable situation.

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