Showing Compliance With Employment Eligibility Verification Requirements

Thomas W. Hildreth
Of Counsel, Corporate Department
April 1, 2004

For the most part, employers are aware that all new employees are required to complete an Employment Eligibility Verification, Form I-9, within three days of their start date. Prior to September 11, 2001, there were bills before Congress which would have abolished the I-9 requirement. Conversely, however, there has been an increase in the number of I-9 compliance audits performed by the office of U.S. Citizenship and Immigration Services (formerly known as the “Immigration and Naturalization Service”).

!As an employer, how do you maintain your I-9s and why does it matter?

  • Will anyone ever conduct a “due diligence” audit of your personnel records?
  • Will your company ever be sold or merged?
  • Is there an IPO in your future?
  • Do you have any employees?

If you answered “yes” to any of these questions, then maintenance of your I-9 records should matter to you. Sales, mergers, due diligence, audits (governmental or otherwise), IPOs – these are all occasions for which you want to be sure that your I-9 house is in order.

In December 2003, the Office of Business Liaison, in the US Department of Homeland Security, issued an employer bulletin advising of expected changes to the I-9 form, including a reduction in the number of documents that may be presented by an employee to prove that they are authorized to work. In its present form, the I-9 must be completed by both the employer and the new hire. The new hire must then show at least two documents from a list of acceptable proofs of identity and employment eligibility.

In some cases, the I-9 needs to be re-verified. In all cases, the form needs to be retained for three years after the date employment began or one year after the date employment is terminated, whichever is later. Some specific I-9 file maintenance practices can help reduce the costly risk of an employer being found noncompliant during an audit of these verification records.

A.!Keep I-9 forms separate from individual personnel records.

B. Prepare a master I-9 spread sheet, listing alphabetically all current employees and employees terminated within the past year; include columns to record date of hire and date of termination.

C.!Keep three separate notebook binders for:

(1)!Current employees for whom re-verification will never be required;
(2)!Current employees requiring re-verification; and
(3)!Terminated employees – note the date of hire and the date of destruction directly on the form.

D. Attaching to the I-9s copies of any documents that the employer inspected to verify identity and work authorization is optional. But if you do it for one, do it for all to avoid any future concerns about preference or prejudice.

Whereas this form of employment eligibility verification is coming under closer scrutiny during government or other mandatory paperwork inspections, employers can take steps to help ensure that such an audit will not result in a financial penalty, but remain merely inconvenient.