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The 鈥淓mployment Eligibility Verification鈥� form, commonly known as Form I-9, is the federal government鈥檚 official mechanism to verify an employee鈥檚 identity and authorization to work in the United States. Strict rules govern the completion and accuracy of I-9, and failure to follow them can place an employer in a difficult position. Here are some key points to keep in mind when completing I-9:

• Complete I-9 within three business days of an employee beginning work.
• Section 1 is completed by the employee. If the employee requires assistance filling out this section, the individual providing help must complete the Preparer/Translator Supplement and attach it to I-9. For employers not enrolled in E-Verify, the employee may choose to provide their Social Security number (SSN) or leave that field blank. Employers should also keep in mind that requiring specific documents containing an employee鈥檚 SSN may constitute unlawful discrimination under federal law.
• Section 2 is completed by the employer. The employee must present document(s) from the List of Acceptable Documents 鈥� and importantly, the employee, not the employer, chooses which documents to provide. Once the documents are presented, the employer must verify that they comply with the List of Acceptable Documents. An employee may present one document from List A, or one document each from List B and List C. When reviewing these documents, employers should ask themselves four key questions:

1. Is the document listed on the List of Acceptable Documents, and does it comply with the required combination?
2. Is the document current and unexpired?
3. Does the document reasonably appear to be genuine?
4. Does the document reasonably relate to the person presenting it?

If the employer can answer 鈥測es鈥� to all four questions, their verification responsibility under Section 2 is complete.

When should an employer reverify?
Employers should never reverify the employment eligibility of U.S. citizens or noncitizen nationals, and do not need to reverify upon the expiration of a U.S. passport, U.S. passport card, Permanent Resident Card (鈥済reen card鈥�), or any List B identity document. Reverification applies only to employees with temporary work authorization and must be completed no later than the expiration date of the employee鈥檚 employment authorization or documentation 鈥� unless the employee鈥檚 work authorization has been automatically extended under specific federal rules. Reverification is completed on Supplement B of Form I-9.

Notice of inspection

The Department of Homeland Security鈥檚 U.S. Citizenship and Immigration Services (USCIS) is authorized to audit an employer鈥檚 Form I-9 records at any time.

In Oregon, employers that receive a Notice of Inspection from USCIS must notify their employees within three business days, making a reasonable effort to inform every employee 鈥� though doing so as soon as possible is best practice. As part of the inspection, agents will identify the scope of the audit, which generally includes all current employees and former employees whose I-9 records must still be retained. Employers are required to maintain each employee鈥檚 I-9 for at least three years after the date of hire or one year after the date employment ends, whichever is later.

If USCIS identifies compliance issues, employers are typically given 10 business days to correct them. However, substantive violations or evidence of knowing employment of unauthorized workers can result in monetary fines or more severe penalties. Accordingly, it is critical that employers maintain accurate, up-to-date I-9 records and routinely review their compliance practices.

The value of an internal Form I-9 audit

There is a long list of things most employers would rather do than dig into the 鈥淚-9 folder鈥� for an internal audit. The process can be tedious, confusing, and downright frustrating. However, conducting an internal I-9 audit is one of the best ways to prepare for 鈥� and protect against 鈥� a real USCIS inspection. It allows an employer to identify and correct issues before they become liabilities and demonstrates to investigators a good faith effort to comply with the law despite the complexity of the requirements. Here are some practical tips to help minimize the frustration and make an audit process more efficient:

When conducting an audit, employers can either review all I-9 forms or conduct a sampling of forms. If opting for a sample review, ensure that the selection process is nondiscriminatory 鈥� do not single out employees by national origin, name, citizenship status, or any other identifying characteristic. The goal is to ensure consistency and fairness across the workplace.

Be transparent with employees and explain the scope of the audit and the reason for the audit.

If there is a deficiency in Section 1, notify the employee in private and have the person correct the deficiency.

The employer will correct any deficiency discovered in Section 2.

Corrections can be made by drawing a line through the incorrect information, entering the correct/missing information, and initialing/dating the correction or missing information. Attach a written explanation for why information was missing or needed correction. Do not backdate forms.

While I-9 compliance can feel burdensome, a committed and thoughtful internal audit process can transform it into a proactive safeguard and give employers a certain peace of mind in the face of potential challenges and inspections.

Abby Fitts is an attorney at Barran Liebman LLP. She advises employers regarding a full range of employment matters, including handbooks and policies. Contact her at 503-276-2190 or聽[email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.