HR REPORT: Form I-9 Updates

Christina Simpson, Esq., Drummond Woodsum

The Immigration Reform and Control Act (IRCA) of 1986 was established to control the employment of unauthorized aliens in the United States and to protect authorized workers from unfair immigration-related employment practices.  Among other things, the Act requires employers to timely and properly complete I-9 forms for covered individuals.  On August 1st, 2023, the government issued an updated version of the form.  All employers must begin using this form by November 1, 2023.  As of November 1, 2023, this new version will be the only acceptable version for new hires.  The issuance of the new form provides the opportunity to remind employers about the I-9 requirements, as well as the potential consequences for employers who fail to comply with this requirement.

The purpose of the form is to verify the identity of the individual providing services to an employer and that the individual is authorized to work in the United States.  Section 1 of the form must be completed by the individual after they have accepted the job offer but no later than their first day of employment.  Additionally, the individual must present appropriate documents from the “List of Acceptable Documents,” which are included in the form’s instructions.  An employee may present either one document from List A, or one document each from Lists B and C.  The employer cannot instruct an individual to present particular documents from the list, but should instead simply provide them with the list and ask them to choose which documents they would like to present for the form.  Using the documents provided, the employer is required to complete Section 2 of the form within three business days of the individual’s first day of employment.  However, if the individual is hired for less than three days, then Section 2 must be completed no later than the first day of employment.  Under the conventional, in-person verification process, the employer, at its discretion, may decide to retain or not retain copies of the documents used in the verification process. However, the policy must be applied uniformly for all employees.

Employers are required to complete a federal I-9 form for all individuals who receive “remuneration” in exchange for providing services.  This standard requires employers to have valid I-9s for both employees and volunteers (to the extent volunteers are provided with a nominal fee).  The exception to this rule involves election judges and poll workers.  Employers must have a completed form on file for all current employees hired on or after November 6, 1986.  Following termination, however, employers can destroy I-9s for separated employees either one year after the date of termination or three years after the date of hire, whichever is longer.

While I-9s are considered personnel file documents, many employers elect to maintain them separately from an employee’s official personnel file in a combined “active employee” binder, as well as a “terminated employee” binder, so that all forms are easily accessible in the event of an audit. 

Employers can face fines for failure to maintain I-9s and/or for failing to have properly completed I-9s.  These fines are calculated on a per-I-9 basis and depend on the number of errors on the forms.  Baseline penalties for non-compliance are up to $2,701 per I-9 prior to the application of aggravating and mitigating factors. Higher fines are also assessed in more serious circumstances, such as the knowing hiring of undocumented aliens. Criminal charges can also be brought against employees of the organization if there is reason to believe that the organization is harboring illegal aliens, trafficking in illegal aliens, or engaging in other criminal conduct. These penalties are generally assessed by U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security.

Given the technical nature of the prior version of the form, it was not uncommon for employers to discover that up to 80% of their I-9s contained errors.  For an employer with a workforce of 47 employees, this error rate can result in a $100,000 fine.  The August 1st version of the form is more streamlined, but, nonetheless, employers should make sure that the employee responsible for completing the form on the employer’s behalf are trained to properly complete the form and minimize errors.

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This is not a legal document nor is it intended to serve as legal advice or a legal opinion.  Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.