What Employers Need to Know About I-9 Audits

by Ronald Shapiro
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work visaWith the government enforcing I-9 compliance with increased vigilance, it is more important than ever for employers to understand the I-9 requirements and be prepared for an I-9 audit in the event that one occurs.

Compliance is the best preparation for an I-9 audit. The best way that employers can prepare for an I-9 audit is to ensure that they have appropriate and necessary I-9 procedures in place. Employers are required to have a Form I-9 for each and every employee that it hires. Even if an employer re-hires a previous employee, a new Form I-9 must be completed at the time of re-hire, unless the re-hire occurs within three years of the completion of the initial I-9. Moreover, if an employer contracts with other companies, it should make sure that the other company has I-9s for each and every one of its employees too.

In order to comply with I-9 requirements, employers must:

  • Allow the employee to choose which documents to present for verification.
  • Refrain from requesting more documents than necessary.
  • Physically examine each original document the employee presents to determine if it reasonably appears to be genuine and relates to the person presenting it. The person who examines the documents must be the same person who signs Section 2 of the Form I-9. The examiner of the documents and the employee must both be physically present during the examination of the employee’s documents.
  • Record the document title shown on the Lists of Acceptable Documents, issuing authority, document number, and expiration date (if any) from the original document(s) the employee presents.
  • Provide the employee’s first day of employment under “Certification.”
  • Provide the name and title of the person completing Section 2 in the Signature of Employer or Authorized Representative field. Sign and date the attestation on the date Section 2 is completed.
  • Record the employer’s business name and address.
  • Return the employee’s documentation.
  • Refrain from using pre-populated information for Section 1 if using electronic software for I-9 completion, storage, and compliance.

Retain Form I-9s. Employers are required to retain completed Form I-9s for the duration of the individual’s employment with the company. After employment is terminated, the I-9 must be kept for three years after the hire date or one year after termination date, whichever is later. Form I-9s can be retained in paper form or electronically, but if they are retained in paper form off-site, the employer must be able to produce them within three days of an audit request.

Retain supporting documents. Although retention of employee supporting documentation isn’t required, it is advisable. It is important to note, however, that if an employer retains the supporting documents for some employees, it must retain them for all employees.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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