In recent months, employers across the U.S. have seen an increase in audits and enforcement actions by U.S. Immigration and Customs Enforcement (ICE) or the U.S. Department of Labor. Also, some proposed immigration-reform legislation has called for increased employer responsibility on documentation of the identity and employment eligibility of each person a company hires, as well as increased civil and criminal penalties against employers for failing to do so.


Its unlawful for employers to knowingly hire or continue to employ a person who isnt authorized to work in the U.S. With an increase in enforcement and sanctions, employers must be precise in properly completing and maintaining an Employment Eligibility Verification Form I-9 for each person they hire.


The Immigration Reform and Control Act of 1986 made all U.S. employers responsible to verify both employment eligibility and the identity of all employees they hire. Employers are required to complete an I-9 Form for virtually all employees, including U.S. citizens. The federal Office of Management and Budget (OMB) control number on the current Form I-9 expired March 31, 2007, but employers should continue to use the current version of the form until an updated one is implemented.


Employers dont file Form I-9s with any U.S. agency. Rather, theyre required to maintain I-9 records in their own files for three years after the date they hire someone or for one year after the date of an employees termination, whichever is later. Form I-9s must be made available at the work site within three days after an official request is made for them.


By conducting a self-audit on a regular basis to ensure compliance with legal requirements, employers can significantly reduce their exposure to potential civil and criminal penalties. A self-audit gives employers a chance to correct technical violations and to train staff members who complete and retain Form I-9s. It also can unearth problems.


Section 1 of Form I-9 must be completed by each new employee no later than close of business on the employees first day of work. No documentation from the employee is required to verify the information provided in Section 1. The employees signature makes him or her responsible for the accuracy of the information. Its the employers responsibility, however, to make sure the section is complete.


Section 2 must be completed, signed, and dated by an employer representative on or before the end of the employees third day of employment. If an employer hires an employee for less than three business days, however, Section 2 must be completed at the time employment begins. If an employee is authorized to work, but is unable to present the required documents within three business days, the employee must present a receipt showing he or she has applied for the documents within three business days after starting work and must supply the documents within 90 days after beginning a job.


Employers must complete Section 2 by examining documentary evidence provided by the employee and record the required information on the form accurately. Proper documentation establishes both that the employee is legally authorized to work in the U.S. and that the individual who presents the documentation is the person to whom it was issued.


The employers representative should neither require nor suggest that a specific document be provided to verify either identity or work eligibility. Instead, the employee must be free to present any of the acceptable documents listed on the Form I-9. To do otherwise, or to request or require different or additional documentation from the minimum necessary, may subject the employer to an unfair employment practice complaint.


Only original documents can be used for this verification. With the sole exception of a certified photocopy of a birth certificate, photocopies of documents are not permitted. When reviewing the documents presented by an employee, employers are not held to the standard of being an expert. Rather, employers are held to a reasonableness standard. If documentation presented by an employee doesnt reasonably appear to be genuine, employers must refuse to accept it.


While there is no legal requirement an employer make and retain photocopies of documents provided by an employee, an employer can do so. If an employer chooses to follow such a practice, the employer should consistently do so with every employee. Failure to do so may subject the employer to complaints concerning unlawful employment practices. All photocopies should be kept with the Form I-9.


Section 3 of Form I-9 relates to updating and/or reverification. This section is used when employers must reverify employment eligibility before the expiration date of the work authorization recorded in Section 1. Reverification also is available if an employer were to rehire an employee within three years of the initial hire date, and that employee remains eligible for employment. In such a situation, the employer can simply record the date of rehire and sign and date Section 3.


Only the employee can correct an entry made in Section 1. Similarly, corrections to Section 2 or 3 may be made only by the employer. Any correction should be made by writing in the correct information using different colored ink, crossing out the incorrect information, and initialing and dating the correction. In cases in which a new owner of a business is a successor-in-interest, the new owner-employer may keep the prior employers I-9 records. In so doing, however, the new employer becomes responsible for any errors, omissions, or deficiencies in the acquired records concerning those employees. Alternatively, the new employer can complete a new Form I-9 for each acquired employee and attach the new form to the initial I-9.


Upon completion of a self-audit, an employer should develop policies and training programs to address any problems identified and to maintain proper completion and maintenance of I-9 Forms. A variety of maintenance methods exist, and the best approach for a particular employer may depend on the number of employees, as well as a variety of other factors.


Attorney Dale A. DeFelice is a partner with Paine Hamblen LLP, where he practices primarily in the areas of employment and business immigration law.