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By Jaime Lizotte
If your business employs workers who are not U.S. citizens, it’s important to make sure you are in compliance with federal law by maintaining accurate employment records.
Completing the Form I-9 properly is the most important aspect of immigration compliance. When done correctly, your completed I-9 forms are your best proof of compliance—and your key defense against government fines and lawsuits.
However, even if all of your employees are legally authorized to work in this country, you can still face stiff penalties for maintaining inaccurate or incomplete I-9 forms.
A self-audit can go a long way toward minimizing fines and risks of liability for immigration law violations. The main objectives of an I-9 self-audit are to
- Identify and fix mistakes and omissions;
- Eliminate records you no longer are required to maintain;
- Ensure you are not inadvertently employing an undocumented worker.
The audit process
First, check that you have a Form I-9 for every employee currently hired after November 6, 1986. Then, review each I-9 to make sure all information is complete (including basic information, such as your business name and address).
Then, check each form to make sure you have reviewed and recorded the proper combination of List A, B, and C documents (one item from List A, or a combination of one item from List B and one item from List C). Make sure you have not recorded (or filed copies of) more, or different, documents than required.
And lastly, if you keep photocopies of identification documents presented by employees, be consistent and make sure you have copies for all employees. Check expiration dates of documents listed in Section 2 (and work authorization status in Section 1) and make sure reverifications are tracked and completed on time. You do not need to reverify documents for U.S. citizens or permanent residents. You only have to recheck expired documents for foreign workers with temporary residency.
Purge unnecessary I-9 forms
Discard forms you are no longer required to keep under the three-year/one-year retention rule. You must keep a Form I-9 for each employee either for three years after the employee’s first day of work or for one year after the employee’s last day of work, whichever is later.
You should, therefore, have an I-9 form on file for every current employee hired after November 6, 1986, as well as for employees who recently left the company. Here’s an example:
An employee was hired on 4/1/16 and terminated on 8/1/17.
Step 1: Identify the hire date and add three years.
4/1/16 + 3 years = 4/1/19
Step 2: Identify the termination date and add 1 year.
8/1/17 + 1 year = 8/1/18
Step 3: Compare the two dates.
Compare 4/1/19 and 8/1/18
Result: The later date is 4/1/19. Therefore, in this case, you must retain the Form I-9
until April 1, 2019.
What to do if you uncover a problem
When conducting an I-9 self-audit, you may find that:
You are missing a Form I-9 for an employee. In this case, ask the employee to complete Section 1 of the Form I-9 immediately and present documentation as required in Section 2. The new form should be dated when completed—never backdated.