All Things I-9: Important Information and Changes in Work Eligibility Verification

With national attention focused on immigration, work eligibility verification is more important than ever. New legislation and procedures mean more compliance enforcement is down the road. And if you aren’t properly completing and keeping Form I-9 for your employees, you could face serious consequences.

Now is the time to review your Form I-9 procedures—and be aware of some important changes coming soon.

What’s the big deal about Form I-9?

The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers to verify the identity of new employees and their eligibility for employment in the United States. If your organization employs undocumented workers, you could be subject to both civil and criminal penalties (including hefty fines). Individuals within your company responsible for IRCA compliance can also be held personally liable.

A properly completed I-9 helps you verify that the person hired is indeed eligible to work in the U.S.—and potentially prevents these ramifications. In Section 1 of the form, the new employee supplies information about their eligibility to work in the U.S, including documents verifying identity and eligibility (such as a U.S. passport, birth certificate, permanent resident card, driver’s license, etc.). In Section 2, you as an employer attest that you’ve examined these documents as part of this verification process.

A few other important details on Form I-9:

• You’re required to complete Form I-9 within three days of a new hire’s start date.
• You must keep the form on hand for one year after the employee’s termination date or three years after their hire date (whichever is later).
• The U.S. Immigration and Customs Enforcement (ICE) reserves the right to inspect your I-9s on hand at any time. The agency will send you a notice of inspection (NOI) and typically gives three business days from the date of that notice to produce the I-9s and associated documents.
• The U.S. Department of Homeland Security (DHS) periodically revises Form I-9, so make sure you use the most current version of the form. This can be found on the U.S. Citizenship and Immigration Services (USCIS) website.

Physical Inspection of Pandemic-Era I-9 Documents

Typically Form I-9 must be inspected in person to ensure authenticity. But when the COVID-19 pandemic set in, this became difficult as employers went to remote work setups. So since March 20, 2020, ICE has allowed employers to conduct virtual inspections of I-9 documents for certain remote employees.

However, ICE has announced that this flexibility is ending on July 31, 2023. (There will be a 30-day grace period to comply with this requirement, making the “final” deadline Aug. 30.) By this deadline you must also conduct a physical inspection of all I-9 documents verified virtually since March 20, 2020.

That’s not a long turnaround, so you’ll need to start as soon as possible. And given the three-plus years that have passed since the pandemic’s onset, this could be a daunting task. So here are some steps to guide you in the process. (If you use an electronic system to complete your Form I-9s, work with your vendor on physical re-inspection.)

1. Identify the I-9s that require updating. Forms whose documents were virtually inspected should have “COVID-19” noted in the Additional Information field. (Ideally, you’ve been tracking these forms from the start. If not, look at the forms for every new hire individually to see which were virtual.)
2. For each Form I-9, have the employee bring the appropriate verifying documents. Employees can choose which documents to use; they don’t have to be the same documents they initially presented virtually.
3. Once your company’s representative verifies the documents, they must update the Additional Information field on the Form I-9 by adding “documents physically examined.” This note has to include the date of inspection and the name of the person performing it.
   Important: If the person who remotely reviewed the documents is not the person physically inspecting them now, a new Section 2 should be completed and attached to the original.

Keep in mind these inspections could be jarring for employees, especially if they’ve been with you for years. So communicate clearly and tactfully with them about the process. Be specific on dates and locations for them to bring their documents for inspection. Emphasize cooperation and compliance by explaining that this is solely a government requirement, nothing more.

Note that these physical inspections should have already been done for employees who have returned to consistent in-person work. If this hasn’t happened, document inspections for these employees should be prioritized.

ICE plans to publish a final rule later this year regarding possible alternatives to in-person review of verification documents. However, the future of virtual review is uncertain for the time being.

I-9 Document Retention and Purging

As we stated earlier, I-9s must be retained for the later of one year after the employee’s termination date or three years after their hire date. Note, however, that this retention period is applicable after the termination of employment. Here are a couple of examples to clarify this requirement:

• If an employee was hired March 3, 2022, and was terminated May 20, 2023, the I-9 must be retained until March 3, 2025 (3 years from date of hire).
• If an employee was hired June 3, 2015, and was terminated September 18, 2022, the I-9 must be retained until September 18, 2023.

You might also need to retain a Form I-9 outside of this requirement due to litigation or other legal matters. Consult with your attorney if you think this might apply to your company.

You can purge I-9 forms once their retention period has passed. While there’s no legal requirement to do so, this provides two benefits. First, it clears excess outdated paperwork—always a plus when you’re wading through files to get what you need.

More importantly, however, it helps reduce your chance of compliance issues. When ICE performs a Form I-9 inspection, it looks at all forms in your possession—no matter how old. The more you have on hand, the more likely you’ll have one with an error that violates regulations.

For this reason, we strongly suggest having a compliant, solid retention/purge policy for your Form I-9 (and all HR-related documents). It should utilize secure document destruction protocols, with electronically-stored forms undergoing a data wipe process that prevents purged information from being recovered. If a third-party maintains your company’s I-9 records, make sure they’re following a compliant retention policy.

Timing is also crucial when establishing your purge policy. If ICE finds you’ve purged forms too soon, you can face penalties as high as $2,300 per Form I-9. And as stated earlier, if you haven’t purged timely and receive an NOI, the old I-9s may be reviewed and considered in assessing fines and penalties.

E-Verify Requirements

E-Verify is an online tool from the U.S. Department of Homeland Security that helps enforce federal immigration law. Once an employer completes Form I-9 for a new hire, they can use the system to electronically verify the information.

E-Verify must be used by federal government entities and certain federal contractors. Many states and local governments also have their own requirements for its use.

E-Verify in Florida

Florida has historically mandated the use of E-Verify by public employers. Private employers in Florida must also utilize the system when contracting with state and local governments (or if they receive state incentive dollars).

However, a new Florida law taking effect July 1, 2023, requires all private employers with 25 or more employees to utilize E-Verify. It also specifies higher penalties if these employers don’t use the system or knowingly hire ineligible workers. These penalties will be applicable one year after the law itself takes effect. Businesses under the 25-employee threshold can use E-Verify voluntarily if they wish.

Employers must retain a copy of official verifications generated from E-Verify for at least three years. However, this is not a substitute for proper Form I-9 completion and retention. The system is to be used in addition to the required completion of the form for new employees.

That said, the state presumes any employer using E-Verify—regardless of whether they’re required to do so—has not knowingly hired unauthorized workers. This provides extra protection against possible penalties, because using E-Verify in good faith can prevent more severe consequences. If you’re found in violation, you’ll probably still have paperwork to complete and be subject to fines. But it’s far less likely you’ll have any civil or criminal punishment. So consider utilizing the system even if you have fewer than 25 employees. You can visit the E-Verify website to enroll in the service or get more information.

Enlist an HR Professional for Help

Form I-9 and other employment eligibility verification requirements can be complex and time consuming for any employer. By working with seasoned human resources professionals, you can avoid hefty penalties and preserve your organization’s reputation. Contact the HR Solutions team at James Moore to see how we can help you stay in compliance.

All content provided in this article is for informational purposes only. Matters discussed in this article are subject to change. For up-to-date information on this subject please contact a James Moore professional. James Moore will not be held responsible for any claim, loss, damage or inconvenience caused as a result of any information within these pages or any information accessed through this site.