The Definitive Guide To I-9 Compliance - Human Resources Hero

The Definitive Guide To I-9 Compliance

I-9s are likely the most intimidating two-page document in employment as the penalties for missing I-9 requirements can be steep. In this post, were going to cover where to file and how long to retain your I-9s, followed by a close look at each section of the form. 

We’ll review each section of the form to be certain if you’re familiar with both the employees and the employer I-9 requirements. And we’ll discuss the acceptable documents for completion of the I-9 as well. 

How to Store Your I-9's

Employers may actually use a paper system, an electronic system, or a combination of both for I-9 storage. For example, maybe you have a paper storage system for your active employees but want to use an electronic system to store your terminated employees’ I-9s. Or maybe you wish to store them all electronically. It’s up to you. And electronic storage certainly has its benefits. 

However, there are a few important considerations for the documents’ electronic storage to ensure you meet I-9 requirements. USCIS requires that an electronic storage system includes controls to ensure the system’s integrity, accuracy, and reliability. The system must also include controls to detect and prevent the unauthorized or accidental creation, addition, alteration, deletion, or deterioration of an electronically stored I-9.

The system must include an inspection and quality assurance program that includes periodic checks of electronically stored I-9s. And it must also include an indexing system that permits the identification and retrieval of relevant documents.

And lastly, the system must include the ability to reproduce legible and readable paper copies of the form upon request. 

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Form I-9 Requirements for Retention

Now that you know where to store the I-9s, let’s discuss how long to store them. I-9’s should be retained for as long as the employee is working for you, so their full employment length. 

After an employee has separated employment, the form must be stored for three years after the date of hire or one year after termination, whichever date is later. This requirement does require a little math, and As I mentioned, I recommend that you pull an employee’s I-9 at their termination, add a note with the destroy date and then move it to a terminated I-9s file for safe storage this date. 

Completing The I-9

The I-9 aims to verify the identity and employment authorization of individuals hired for employment in the United States. And all US employers must ensure proper completion of an I-9 for each individual they hire for employment. This includes a form for citizen and non-citizen employees alike, and both employees and employers must complete sections of the form.

The I-9 is available in a fillable PDF from the USCIS at https://www.uscis.gov/i-9. The fillable PDF includes dropdown menus for various fields, on-screen instructions, calendar fields, and error messages for incomplete information when completed on the computer. 

For example, if an employer omits a document’s expiration date in section 2, the fillable PDF version will notify you of the omission and prompt correction as you finish the form. 

However, I want to note this smart form should not be confused with an electronic I-9 as defined by USCIS. An employer must still print the completed I-9, obtain the appropriate signatures, monitor completed forms for re-verification, and retain the I-9s for the period discussed. 

And please keep in mind that an electronic I-9, meaning one that is completed and stored via a fully electronic system that is different from this fillable PDF form, must comply with the specific USCIS I-9 requirements to be certain of the electronic system’s integrity.

Who Is Required to Complete the I9

As mentioned, both the employer and employee have responsibilities on the I-9. The employer or employer representative must complete the employer section, such as a designated personnel officer or anyone else acting on the employer’s behalf. 

However, a word of caution here. Having an employer representative complete the form includes some risk as the employer is still liable for any violations connected with the form or the verification process, and utilizing a non-employer representative requires ample training and trust on your part. 

It’s also essential to note that the same person who reviews and validates the employee’s IDs must fully complete section 2, the employer section that includes the dates and employer signature. This is frequently done incorrectly, so it is not permissible for a manager to review a newly hired employee’s IDs while the HR team completes section 2. The same person must complete both responsibilities.

We’re frequently asked whether utilizing a notary public is an option for completing the form, especially for remote employees. Without going into too much detail for this presentation, I want to advise caution here as some notaries cannot or will not sign section 2 due to notary regulations. 

One final note in this regard is that the form states that it has to be completed by an authorized representative; therefore, a notary is simply acting as an individual on behalf of the employer. There’s no section of the form that requires official notarization.

When is a Form I-9 NOT Required

When is the I-9 form not required?  Volunteers, unpaid interns, and independent contractors do not need to complete the form as none of these are categories of employees.

Individuals providing labor to you employed by a contractor providing contract services, for example, employee leasing or temporary employment agencies, do not need to complete the form with you. 

Please note that these individuals must complete an I-9 but not by you as you do not directly employ them.

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The I-9 Step By Step

Section 1: Employee's Responsibility

Now, let’s review the actual form itself. Section 1 is the first page of the form and is for the employee to complete. A couple of notes here. First, I want to call your attention to the little question mark icons. These are located throughout the form and can be clicked to review the on-screen instructions for each field. 

The employee must begin by entering their full legal name, including other last names used, such as maiden name, followed by their home address and birth date. The other last names used field used to require all previous names but now focuses only on legal last name changes. 

An employee must enter NA into any field left blank. Email and phone number are both optional in this section of the form. 

Providing a social security number on the I-9 is voluntary for all employees unless you’re an employer participating in the USCIS E-Verify program. 

Citizenship Verification

It’s important to know that an employer may not ask an employee to provide them with a specific document for the I-9 form with the employee’s social security number on it. Doing so may constitute unlawful discrimination. 

While an employer must have this number for the payroll processes, you’ll receive this via the W-4 for payroll and tax setup, and actually seeing the card is not a requirement. 

In the middle of section 1, employees must identify themselves as a citizen, a non-citizen, a lawful permanent resident, or an alien authorized to work on a temporary work visa. If this last option is the case, the employee must enter the date their employment authorization expires, followed by either the USCIS number or Form I-94 admission number that a company, the visa, and entrance paperwork. You’ll notice that each of these statuses has a corresponding digit 1 through 4 with them. 

Other Requirements

There’s a QR code box on the right side of the form, and the same thing is found in section 2. These codes are automatically generated when the form is printed and can be read by most QR readers. The intention is that they will assist with the audit process. You don’t need to worry about this box, and you shouldn’t write anything in there. I want you to be aware of what it is.

The fields for an employee’s signature and date cannot be electronically populated and thus must be added after printing the form. A common mistake in this section that I’ve seen hundreds of times is that employees will accidentally enter their date of birth for today’s date on the signature line. I think this is because they just entered their date of birth on the top section without even thinking they inadvertently wrote it again. 

Watch closely, and you’ll catch a few of these mistakes. And if you do catch this mistake immediately, I recommend handing the employee a fresh new form to start again. If you catch it later after the form is completed and filed away, well, we’ll discuss how to handle that after a bit.

The accurate date on this signature line is the date the employee completes Section 1, and this may be any time after the job offer was made or on the start date. An employee can complete this form before the start date so long as an employment offer has been made. 

Below their signature and date, an employee must designate whether they utilized a preparer or a translator to complete section 1. The bottom of section 1 includes a preparer or translator block. If the employee cannot complete Section 1 without assistance, for instance, if an employee is a minor and their parent helps, or if the employee needs the form translated, someone may assist. This person must read the form to the employee, assist with completing section 1, and have the employee sign or mark the form in the appropriate places.

Then the preparer or translator must complete the final block of this section of the I-9. Please note that if you help an employee with section 1 beyond reminding them of their responsibilities, you must also complete the preparer translator block and section 2.

If completed on the computer, the employee will then select the click to finish icon at the bottom of the page, at which time the smart form will check to ensure that each field in section 1 is complete. Incomplete areas will be highlighted for the employee to review and update accordingly. 

If completed via a paper version, as the employer, you are responsible for reviewing and ensuring that all employees fully and properly complete section 1 of the form. 

Section 2, Part I: Employer's Responsibility

Let’s move on to section 2, the second page of the I-9. This is the employer’s responsibility, and I’ve separated this page into two slides to take a closer look.

Possibly the most important part of the I-9 is that this section must be completed with 3 business days of the employee’s first day of employment, and we’ll address dates more closely on the next slide.  

At the top of this section, you must begin by entering the employee’s last name, first name, and middle initial from section 1. Then, there’s the new citizenship immigration status field. This is the new field that I referenced on the last slide. 

This field’s response is a digit from 1-4, which correlates to the number of the citizenship or immigration status check box the employee selected back in section 1. When completing the form on the computer, this field will pre-populate. And additionally, once this field is pre-populated, the document drop downs that follow will be directly related to the employee selected citizenship or immigration status, which is really handy. 

Then, you must physically examine the employee’s documents in the employee’s presence and enter each into the appropriate columns. 

We’ll discuss the various lists and allowed documents in a few slides, but it’s important to keep in mind that an employer may not include more or fewer documents than required to complete this form. 

To simplify things, and because documents on these lists both validate an employee’s identification and their right to work in the US, I’ll refer to them all as IDs moving forward even though they consist both of IDs in the traditional sense and authorization of employment. 

Over on the left of this slide, I’ve included a pop-out of what the document title drop down list looks like for an employee listed as a United States citizen. 

Let’s say an employee provides a US passport for completion of section 2. Once you select that as the document type, the drop-down list, the appropriate issuing authority is pre-populated. This is true of the other lists and is a great feature to introduce errors related to entering the wrong document name or issuing authority, thus reducing errors on the form. 

I want to call your attention to the additional information box in this section. This is new and a great feature for you. An employer may use this space to notate any additional information required for the I-9, such as additional documents that certain non-immigrant employees may present, an E-verify case number, or even an employee’s termination date and the I-9 retention date, which I think is the most useful information to enter into this box as a way to track these dates.

An important note for section 2 is that even if you collect photocopies of IDs, which is optional, each ID must also be entered into section 2. Copying IDs and stapling them with the I-9 does not negate the requirement to complete this form fully. 

Section 2, Part II: Certification

Continuing with section 2, let’s discuss the employer’s certification block. Dates in this section are significant so pay close attention to them. 

The first is the employee’s first day of employment, the date of hire, or the exact date that an employee began employment for wages. This date must match the payroll and timekeeping records. There is a handy calendar to enter this date and other date fields on the new form if you’d like to use it. 

The second date was simply when you examined the IDs your employee presented and completed the employer’s sections. And this date must be within three business of the date of employment began.

Fill in the rest of this section with your company name, position title, and company address. Again, the form must be printed, at which time you’ll add your signature and signature date, as these can’t be entered via the computer fillable fields.

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Section 3: Reverification and Rehires

And lastly is section 3 of the form. The new computer version looks like this section is its own page, but it’s not. It will still print at the bottom of the second page of the I-9. This section continues to serve a few purposes, most of which have to do with reverifying or rehiring an employee. And when I say reverifying, I’m talking about when an individual’s authorization or applicable employment authorization document expires. 

Remember in section 1, where an employee authorized to work temporarily will enter the expiration date for this? Well, you’d use this section here to enter updated documents showing continued employment authorization on or before the expiration date.

This section is also used for rehiring previous employees, and you’ll want to keep in mind the I-9 retention period requirement. Employers have two options for a rehired employee and their I-9. You may complete a new I-9 for a rehired employee. This must be completed within the same 3-day time frame. And the original I-9 must still be retained for the proper retention period. Alternatively, you can take a look at the original I-9 and complete section 3 in certain circumstances.

Acceptable Documents

Because the acceptable I-9 documents are a confusing section of the I-9, we’ll discuss them now in greater detail. If you’re anything like me, you’re likely not an ID expert, and that’s okay. For the I-9, you’re expected to accept documents that reasonably appear to be genuine and relate to the person presenting them. 

Now we’re actually going to review and discuss the three different lists momentarily. Still, for completion of the I-9, employees must present either one ID from List A or one ID from List B and one ID from list C. I’ve already mentioned that employers may not specify which IDs an employee must provide I-9. Still, you’ll want to provide the list of acceptable documents to the employee in preparation for completion of the form.

List A of Acceptable Documents

Looking more closely at list A for which an employee must provide only one ID, this list includes heavy-hitting IDs that surpass others. They validate both identity and employment authorization in the same document. They include a US passport or passport card, a permanent resident card, or a foreign passport that includes temporary work authorizations. 

I want to let you know that I cannot dive into proper list A documentation for employees authorized to work on a visa today. Those of you with these employees are likely aware there are additional requirements for proper documentation in the List A column.

Lists B & C of Acceptable Documents

If an ID from List A is not presented, an employee must present one ID from List B and list C. I refer to these lists as the picture and paper lists. List B, the picture list, contains documents such as driver’s license or state ID, school ID with a photograph, US military card or military dependent’s card, to name a few.

List C, the paper list, contains documents such as a social security card, various types of birth certificates, a Native American tribal document, a US citizenship ID card, and a few other lesser utilized options.

Other I-9 Considerations

Let’s review some additional pertinent information regarding IDs. First is that all IDs presented must be unexpired. The strict 3-day timeframe for I-9 completion begs what to do when an employee isn’t able to produce the required IDs or doesn’t do so within the required timeframe. 

First, I recommend always informing an employee that these IDs are required on the first day of work as part of the offer letter or pre-employment packet. You may also consider adding a simple yes or no question to your employment application regarding employment authorization, and we’re here to help if you want samples for permissible questions to obtain this information. 

Then, for an employee who is working to obtain the correct ID because it’s stuffed away in a safe deposit box or just forgotten on the first day of work, I recommend allowing the employee to work for up to three business days, but making sure that that due date for the missing IDs is clear. 

If an employee cannot present the required IDs within three business days of the work date, they must present an acceptable receipt within that time instead of the required ID. 

I want to briefly detour and discuss what’s known as the receipt rule. This rule is designed to cover situations in which an employee is authorized to work at the initial hire time but does not have an ID on the acceptable documents list.

There are strict guidelines on this rule, and I won’t go into all of them, but it’s important to know that employees may submit a receipt for a replacement document when the document has been lost, stolen, or damaged. The receipt fulfills the verification requirement of any document for which it was issued for list A, B, or C. It is valid for 90 days, after which the individual must present the replacement document to complete the I-9. 

Upon accepting a receipt, select the corresponding document’s receipt from the drop-down list in section 2. Suppose you complete a paper I-9, record the document in the appropriate list and write the word receipt and the document number in the document number field. Either way, this section will require updating once you receive the replacement document.

Back to what to do if an employee hasn’t provided the necessary documents after three days with no IDs or receipts, I recommend suspending the employee from work until the proper IDs are produced. And I recommend putting a timeframe on the suspension.

For example, allow the employee 10 days to produce the required IDs for the I-9. After that, the position is open based on the employee’s inability to meet the employment verification requirements. 

And one final note on IDs, photocopies of IDs are not acceptable as a form of ID. I’ve received this question hundreds of times along with requests for an ID to be scanned and emailed or faxed to me from afar, all of which are prohibited by USCIS.

Now, there’s one exception to the photocopy rule. The only exception to the requirement that original documents be provided is that an employee may present a certified copy of a birth certificate. 

If you have additional questions about the I-9 or have concerns about your I-9’s state, we recommend getting some additional help. You can find helpful HR professionals in your area by clicking the “Find HR Help Near Me” button at the top of the page.

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