This session was recorded on April 21, 2022.
An I-9 audit can be an intimidating event. If you haven’t properly completed or maintained your I-9s, it can be a costly one as well.
During this session, you’ll learn critical filing and retention requirements so you can be confident that your organization is compliant. We’ll review the various sections of the I-9 in-depth, discuss the acceptable documents needed to complete it properly, and examine the penalties for not complying with the instructions. We’ll also briefly discuss the E-Verify system and provide some best practice suggestions on when to conduct a voluntary internal audit of your I-9 files.
Monica Schwing (00:00:04):
Hello, everyone. Thank you so much for joining us today. I’m really excited to welcome you to our training, Form I-9: Keys to Compliance. Before I jump in, I would like to introduce myself. My name is Monica Schwing. I’ve held roles as an HR generalist and a payroll and benefits manager at a large ski resort where I provided HR guidance to more than 500 employees and completed a lot of I-9s every year. I also have HR experience in the healthcare field and the nonprofit world prior to my pivot to advising and now directing our team of HR experts.
Monica Schwing (00:00:39):
All right. I want to brush through a couple of housekeeping items before we jump in. So I want to let you know, we will e-mail you a recording of the presentation and a PDF of these slides within about 24 hours following our presentation today. I will hold two polls throughout the session, so I do hope that you’ll participate in those. Stay tuned for them. Then also, please go ahead and use the Q&A box for any questions that you have. I’ll get to as many as I can during the Q&A session at the end.
Monica Schwing (00:01:10):
Actually, on that note, I do often get a little excited about this topic. I’m passionate about I-9s, which might sound like an odd sentence, I know, but I often run a couple of minutes over in an attempt to answer as many questions as I can. So if you’re on a tight timeline, just be aware that you might miss some of the Q&A portion at the end, but that will, of course, be included in that presentation… or the recording that we’ll send out.
Monica Schwing (00:01:34):
All right. So, like I said, I’m passionate about this topic and we’re going to spend an hour talking about the form I-9. That might sound a little bit crazy, but I think it will be fun. At least, again, I find this topic fun and interesting, so I’m really excited to share it with you. Here’s our agenda for today. We are going to be covering a range of topics on the I-9, beginning with proper filing and retention. We’re then going to review each section of the form in depth to be certain that you’re familiar with both the employee’s and the employer’s responsibilities.
Monica Schwing (00:02:07):
We’re going to chat about the acceptable documents that an employee can produce to complete the form. We’ll talk a little bit about the penalties for not completing or storing it correctly. I want to briefly introduce the E-Verify program, make sure we’re on the same page with what that is. Then I want to give you some best practices on when to conduct a voluntary audit of your I-9 files. All right. I also have a couple of FAQs sprinkled throughout the presentation that I hope you’ll find helpful. We do have a lot to get through, so please sit back, let the information settle in a bit, but do feel free to ask questions along the way.
Monica Schwing (00:02:46):
All right. So let’s jump into I-9 filing procedures and retention requirements. This is where to store those I-9s and how long to store them for. All right. With regard to how to store them, employment law attorneys often recommend that you keep all I-9s in either a separate master file or a three-ring binder. This is because I-9 files are subject to unique retention laws, so record retention laws. For that reason, this separate master file or three-ring binder will help you ensure that you retain them for as long as necessary, but that you can also readily discard them after the retention period expires.
Monica Schwing (00:03:26):
For ease of organization, I even recommend removing an employee’s I-9 from your master folder or binder on their termination date. Then I always moved it and stored it in a separate terminated employee I-9 file so that I could be sure to store it for the appropriate time period, which I’ll discuss next. In addition to these retention requirements, in the event that you are audited, it’s imperative that I-9s are removed from all other identifying and confidential employee information before they’re reviewed. So it’s really just best to maintain them really that separate from the employee’s personnel file for the duration of their employment and the duration of the I-9 retention period.
Monica Schwing (00:04:12):
Now, regardless of where an employer stores the I-9s, the law requires that you make the forms available upon request by an authorized government officer after being provided as little as three days notice prior to an inspection. So it’s good reason to keep them in good order. Okay. That was where to store them, but now let’s talk about how long to store them for. First and foremost, I-9s need to be retained for as long as the employee is working for you, so for their full length of employment. Then after employment has terminated, they’ve got to be retained for three years after the date of hire or one year after the date of termination, whichever of those two dates is later.
Monica Schwing (00:05:04):
Okay. So this does require a little bit of math, and I’ve provided a simple equation as you can see on the slide here, which utilizes both the employees hire and termination dates to calculate that accurate I-9 destruction date. All right. Now once that I-9 retention period expires, you are able to and you likely want to go ahead and destroy those old I-9s. I recommend using a secure shredding company to destroy them because they do contain sensitive employee information and it’s always important to avoid compromising that information.
Monica Schwing (00:05:40):
Now, I prefer to keep a list of all those that I’ve destroyed just in case I’m asked about a document that’s already passed its expiration date. But you need not do that, that’s just my personal practice. Lastly, I do want to mention that if you’re in the middle of an I-9 audit by government officials or perhaps you’re involved in litigation regarding an employee, you’re going to want to keep those relevant records, including the I-9, until the audit or the claim is closed.
Monica Schwing (00:06:09):
Okay. So let’s switch gears now and talk about the details. We’ll get into the details of the form here. So admittedly, for a two-page form, this document could be quite intimidating. I mean, it is a government document, it’s required, and it includes some pretty strict guidelines and possible substantial penalties for not completing it correctly. So no pressure here, right? In this next portion of the presentation, I want to give you thorough information so that you feel like an expert on the form and that you feel confident that your organization is compliant with the various requirements.
Monica Schwing (00:06:44):
Okay, so let’s start with high level. Why in the world do we have this form and which version are we using? The purpose of the I-9 is to verify the identity and employment authorization of individuals hired for employment in the United States. All US employers need to ensure proper completion of an I-9 for each individual that they hire for employment. This includes a form for citizen and non-citizen employees alike, and both employees and employers must complete sections of the form. Now, the current version of the I-9 was updated just slightly in 2019 and it’s dated 10/21/19 in the bottom left-hand corner of the form.
Monica Schwing (00:07:30):
Now, the form was actually released on January 31st, 2020, and not required for use until May 1st. So of course, we can begin using it as soon as it was released on January 31st, 2020, not required for use into until May 1st, 2020. Effective from that date forward, that’s got to be the version we’re using for all newly hired employees. Now, the I-9 underwent some pretty substantial penalties… Not penalties, excuse me, changes back in 2016. Then we’ve gotten new versions in 2017 and 2019, but those versions only tweaked a few small things to make the form clearer for both the employee and the employer when completing the form.
Monica Schwing (00:08:17):
Per the U.S. Citizenship and Immigration Services, or USCIS, as I refer to them, those 2016 changes, the big changes that it underwent, were intended to create a smart version of the form to reduce technical errors and make the form easier to complete on the computer. In short, those changes were intended to assist with form filling functionality to provide a more accurate and error free I-9. So when the form is completed on the computer, it’s a fillable PDF. It includes various dropdown menus for fields, it includes clickable on-screen instructions, there’s calendar fields, and there’s error messages for incomplete or missing information.
Monica Schwing (00:09:01):
For example, if you omit a document’s expiration date in section two of the form, this fillable PDF version, it’s going to notify you of the omission and prompt you to correct that before you finish the form. Now, another change in 2016 is that the instructions became a separate PDF. They used to be all one document, there are now two, and we do need to make sure that they’re available either in print or electronic format to all new employees completing the form. Now, I do want you to know here that this smart form should not be confused with a fully electronic I-9 as defined by USCIS.
Monica Schwing (00:09:42):
An employer still has to print the completed I-9, they’ve got to obtain the appropriate signature. So even though it’s a smart form, the signature and the date next to the signature, they can’t be pre-populated. We need to monitor the forms for reverification, we’ve got to retain them for the period that we discussed earlier. Just keep in mind that a fully electronic I-9, meaning one that is completed and stored via a fully electronic system, must comply with USCIS’s strict criteria to be certain of the integrity of that electronic system for completion.
Monica Schwing (00:10:18):
Okay, so now I’ve got our first FAQ here. The question is, what if we’ve been using the wrong version of the form? You just told me that there was a new one in 2020, I had to use it beginning May 1st, 2020, what if I’ve been using the wrong one? If the wrong version of the I-9 was completed when the employee was hired but their documentation that they presented was acceptable under the requirements at the time of hire, we still do need to go rectify the error. USCIS actually gives us two options for this.
Monica Schwing (00:10:49):
You can staple the outdated completed form to a blank current version and sign the current version noting why the current version is blank, but is attached. Or, my preferred option, is you can draft an explanation and attach it to the outdated completed I-9 explaining that we just used the wrong version at the time of hire and we are going to go ahead and add this memo as a good faith effort. All right. So, as I mentioned, both the employer and the employee have responsibilities on the form. For the employer’s section, it’s got to be completed by the employer or an employer representative such as a designated personnel officer or anyone else acting on the employer’s behalf.
Monica Schwing (00:11:41):
Now, a word of caution here though. Having an employer representative, especially if it’s a non-employee representative, complete the form does include some risk because the employer is still liable for any violations in connection with the form or the verification process, and utilizing a non-employee representative does require ample training and some trust on your part. Now, it’s also really important to note that the same person who reviews and validates the employee’s documents must fully complete section two, that’s the employer section, that includes the dates and the employer’s signature.
Monica Schwing (00:12:22):
Okay. Now this is something that’s frequently done incorrectly, so I want to double down on this here. For example, it is not permissible for a manager to review a newly hired employee’s documents but then have HR complete section two. The same person has to do both responsibilities. Now, we’re frequently asked whether utilizing a notary public is an option for completing the form, especially when we’re talking about remotely hired employees. Without going into too much detail for the purpose of presentation, I do want to advise a little bit to caution here.
Monica Schwing (00:12:56):
Some notaries cannot or will not sign section two due to notary regulations, but a final note here is that the form states that it has to be completed by an authorized representative of the company. Therefore, a notary is simply acting as an individual on behalf of the employer. Okay. There’s no part of the form that requires official notarization. Okay. So when is the form not required? I’ve included a full list of individuals for whom the I-9 does not apply. I want to talk about the two categories that we see the most often.
Monica Schwing (00:13:35):
First of all, volunteers, unpaid interns, and independent contractors do not need to complete the form as none of these are categories of employees. Okay. We’re focusing on our W-2 employees for the completion of the form. The second one here that I want to mention is individuals providing labor to you but who are employed by a contractor providing contract services. For example, maybe you’ve got employees through an employee leasing or a temporary employment agency. Those employees don’t need to complete the form with you. Now, of course they’ve got to do an I-9, but it’s not with you because they’re not directly employed by you.
Monica Schwing (00:14:20):
All right. Now we’re going to begin looking at the form itself. I’ve got section one on the screen here and on our next slide. This is the very first page of the form and this is the section for the employee to complete. Couple of notes here. I want to call your attention to the little question mark icons. Those are the onscreen instructions that I mentioned earlier. We got those icons in 2016 with the smart version. You can click those for onscreen instructions for each field if we’re doing this on the computer. Now, the employee needs to begin by entering their full legal name, including other last names used, like a maiden name, followed by their home address and date of birth.
Monica Schwing (00:15:01):
Now, please note that if an employee leaves any field blank, they do need to enter NA into that field. Email and phone number are both optional in the section of the form, and perhaps surprising to some, so is a social security number on the I-9. This is voluntary for all employees unless you’re an employer participating in the USCIS E-Verify program. It’s really important to know that an employer may not ask an employee to provide them with any specific document to complete the I-9, like a social security card, and doing so may constitute unlawful discrimination.
Monica Schwing (00:15:40):
Now, I want to mention here, of course we need that number, right? We’ve got to have that number for payroll processes, but you will receive that via the W-4 for payroll and tax setup and actually seeing the card is not a requirement. Okay, so continuing here with section one. In the middle of section one, employees must identify themselves as a citizen, a non-citizen, a lawful permanent resident, or an alien authorized to work on a temporary work visa. Now, if this fourth option is the case, the employee must then the date that their employment authorization expires followed by either the USCIS number, the Form I-94 admission number, or foreign passport number that accompanies their visa and entrance paperwork.
Monica Schwing (00:16:30):
Okay. So you notice right there next to those little boxes that each of those statuses has a corresponding digit, one through four. We’re going to use those in section two of the I-9, so I’m going to reference back to them in a couple of slides. All right. Now, the fields for the employee’s signature and date, as I alluded to earlier, they can’t be electronically populated on the smart form. So the form does need to be printed out and then they will add their signature and date to the form at that point in time. Now, the accurate date on the signature line here is the date that the employee completes section one.
Monica Schwing (00:17:07):
This may be any time after you’ve extended an official job offer or on the start date. Most people complete this on the start date, but I just want you to know section one can be completed before the start date so long as an official offer of employment has been extended. All right, below their signature line, see the gray box there? The employer is going to designate whether or not they utilized a preparer or translator when they completed section one of the form. Then beneath that, if they did utilize the help of a preparer or translator, that person will fill in the bottom of this section.
Monica Schwing (00:17:47):
For instance, if an employee cannot complete section one without assistance, maybe they’re a minor and their parent helps them out, or perhaps you’ve got an employee who needs the form translated, of course someone can assist. So that person’s going to help the employee with section one. Make sure that we’ve got the right fields completed and then the preparer, translator will complete the very bottom section of section one right here. Now, I want to note, if the employee completes it on the computer, they’re going to click to finish at the bottom and then the smart form is going to do its thing.
Monica Schwing (00:18:22):
It’s going to make sure that all of our fields are completed and any incomplete fields will be highlighted for the employee to review and update. Now, if you’re using a paper version of this, as the employer, you’re responsible for scanning section one to make sure that all of the fields are properly completed. All right. Before we move on to section two, I do want to run our first poll. Let’s get this up on the screen here. The question is, who’s responsible at your company for completing section two of the I-9? Could be somebody in HR, could be the new hire’s manager.
Monica Schwing (00:19:03):
You might be saying, “Hey, we use a non-employee employer representative. We’ve designated somebody outside the company.” Or maybe somebody else. Let me give this a few seconds to run. All right. We’ve got some good responses coming in. Let’s give this about five more seconds. All right. Three, two, one, let’s go ahead and end this and we’ll show the results here. It looks like, by and large, someone in HR is completing section two of the I-9 followed by the new hire’s manager. This is not entirely surprising to me.
Monica Schwing (00:19:53):
I’m curious about the 11% on other. If you want to chat in and let me know who that is, I’m curious who’s tackling this for you. Someone in HR makes sense and then new hire’s manager. That absolutely makes sense. Practically speaking, obviously that works in a lot of cases. Let’s just make sure that those managers are trained on the sections that we’re going through so that we feel really confident that they’re done well. All right, so let’s move on to section two. This is the second page of the I-9. This is the employer’s responsibility. I’ve separated this out over a couple of slides so we can take a close look.
Monica Schwing (00:20:30):
Now, possibly, the very most important part of the I-9 is that this section has got to be completed within three business days following the employee’s first date of employment. We will address dates more closely in a couple slides. At the top of the section, you’ve got to begin by entering the employee’s last name, first name, middle, initial from section one. That will pre-populate if you’re using that computer version of the form. Then upper right, you see here the citizenship/immigration status field.
Monica Schwing (00:21:02):
This is the field that I referenced on the last slide or in section one where the response here is a digit from one to four, and that correlates with the number of the citizenship or immigration status check box that the employee selected in section one. And again, if you’re using the computer version of this, that will pre-populate for you. And then, it’s really nice, as soon as you fill in that field, whether it’s pre-populated or you’re doing it on the computer, the associated document dropdowns will be correlated to the employee selected citizenship or immigration status, which is really handy.
Monica Schwing (00:21:39):
All right. Now we’ve got to physically examine the employee’s documents in the presence of the employee and enter each into the appropriate columns. We’ll discuss the various lists and allowed documents in a couple of slides, but it’s really important that we keep in mind that we can’t include more or fewer documents than are required to complete this section of the form. All right. On the left-hand side of the screen, I’ve included a little pop out of what the document title dropdown list looks like for an employee who listed that they’re a citizen of the United States.
Monica Schwing (00:22:13):
Let’s say that this employee provides a US passport for completion of section two. Well, soon as you select that from the dropdown list, the appropriate issuing authority is going to pre-populate for you. This is true of the other list as well. I think it’s a great feature to reduce errors related to entering the wrong document name or issuing authority. Now, I do want to call your attention to the additional information box in this section. This was new in 2016. We can use this for a number of reasons. I’m going to cover a couple of them on the next slide related to COVID.
Monica Schwing (00:22:48):
But unrelated to COVID, we could use this box to enter an E-Verify case number if you use E-Verify. I like to use it to enter the employee’s termination date along with the I-9 retention date just so I have that handy so that I know how long I need to keep it for. So couple of options there to use that box. Now, an important note about section two. Even if you collect photocopies of the documents that an employee provides, which is optional, you’ve still got to list each document in the various columns here. Okay?
Monica Schwing (00:23:23):
So copying the employee’s documents and just stapling them with the I-9, maybe writing here, “See attached,” that’s not okay. Copying them and stapling them does not negate the requirement to fully complete this section of the form. Now, I want to touch a little bit further while we’re on this slide on… or I want to elaborate on photocopying documents. Unless you participate in the E-Verify program, you are not required to photocopy or scan in documents for retention. Doing so is totally voluntary. This is often a little bit shocking to employers, but photocopies are not a requirement as part of the I-9 completion.
Monica Schwing (00:24:06):
If you do want a photocopy, if you’re not using E-verify and you want a photocopy, that’s fine. Just do so consistently for every employee regardless of their national origin or their citizenship. Be consistent with that decision and staple those photocopies with the I-9, don’t use them for any other purpose. All right. Let’s do another FAQ. So if we do photocopy those documents, so employee’s started, we’re photocopying their documents, we’re sending them to HR with the I-9, can the HR person at our company just go ahead and fill in section two? I hope that you’re all shaking your head, no.
Monica Schwing (00:24:47):
As I mentioned earlier, the very same person that reviews the employee’s documents needs to fully complete section two. That’s true even if photocopies are made. So in this case, the HR person can’t examine the photocopies and complete section two because they would’ve needed to be in the physical presence of the employee and their original documents to complete it. Okay. So I want to spend a little bit more time on section two. Same area here, but I’ve got a sample on the screen. There are two COVID-related flexibilities for which we use the additional fields box and we’ve got some updates on them right now.
Monica Schwing (00:25:27):
First here, beginning on May 1st of this year, the Department of Homeland Security, or the DHS, is ending a temporary I-9 policy that allowed employers to accept List B documents that were expired. So we got this flexibility, usually documents must be unexpired, List B only could have been expired. The DHS adopted this temporary policy in response to the difficulty of renewing documents during COVID. But since then, document issuing authorities like your DMV, they’ve reopened or they’ve provided alternatives to in-person renewal. So beginning on May 1st, employers must return to only accepting unexpired List B documents.
Monica Schwing (00:26:16):
So if somebody presented an expired List B document related to COVID, we would’ve entered COVID-19 as the reason in the additional fields box, additional information box right there. You can see the sample on the slide. That’s what we accepted then, now by July 31st of this year, we’ve got to take a couple actions. So if that employee is still employed, they’ve got to present an unexpired document from List A or B. And if presenting a List B document, it could be a renewed version of the document that they originally provided, that expired document, could be something different from List B.
Monica Schwing (00:26:53):
You’re going to enter the document title, the issuing authority, the document number, and the expiration date in that additional information field that you can see on the slide right here and you’re going to initial and date the change. If the employee is no longer with you, no action is needed here. So mark your calendars for this by July 31st. All right. The second DHS exception due to COVID 19. There was a temporary suspension of the physical presence requirement to complete section two of the form. This temporary exception has been extended a number of times and it’s currently set to expire on April 30th of this year.
Monica Schwing (00:27:34):
Now, the DHS could extend it again, but we anticipate that April 30th will be the official end date. So this flexibility allowed employees hired who worked exclusively in a remote setting due to COVID-19 related precautions to be temporarily exempt from the physical inspection requirement that I’ve hounded on associated with the I-9. It permitted this until one of two things happened. So we could do a remote verification if the employee was working remotely due to COVID-19 precautions until one of two things happened.
Monica Schwing (00:28:09):
One, the employee begins non-remote work on a regular, consistent or productable basis, or two, the extension of the flexibilities related to this requirement end. That’s what’s coming up next. Whichever of those two comes first. So if you remotely inspect someone’s I-9 document under the exemption, you would’ve written, “Remote inspection completed on… ” such and such date in the additional information box. You can see the sample there. Then once normal operations resume or this flexibility extension ends, the employee’s got a report to the employer for in-person verified of their identity and eligibility documentation.
Monica Schwing (00:28:52):
The employer needs to physically examine the employee’s original documents in the presence of the employee and then we’re going to add the date of the physical examination along with the name, job title, all of that good stuff into the additional information box. Now, one note on this. USCIS has not specified how long we have to do this following resuming in-person work or the end of this flexibility. Unfortunately, I don’t have more information on that. I would try for the three days, but not only will that be challenging, that might also to be a little bit cautious. But we don’t have more information from USCIS at this time.
Monica Schwing (00:29:36):
All right. So we’ve covered a couple of the COVID exemptions, we covered the top part of section two, now let’s move on to the next part of section two. This is the employer’s certification block. This is the section where the dates are critical, so pay close attention to them here. First, the employee’s first day of employment, that’s just surely the first date of hire, the exact date that the employee began employment for wages. That date does need to match your payroll and time keeping records. The second date here is simply the date that you examined the documents that your employee presented and you completed the employer section.
Monica Schwing (00:30:14):
That’s the date that must be within three business days following the date of hire. Then you’ll go ahead, you’ll fill in the rest of the section with company name, position, title, company address, et cetera. Then again, the form’s got to be printed at which time you’ll add the signature and signature date. Those can’t be entered via the computer fillable fields. All right. Lastly is section three of the form. This section continues to serve a couple of purposes, most of which have to do with re-verifying or rehiring an employee.
Monica Schwing (00:30:50):
Now, when I say re-verifying, I’m talking about when an individual’s employment authorization or their applicable employment authorization document expires. Remember back in section one where an employee authorized to work just temporarily will enter the expiration date for their work authorization? That’s where we’re going to use section three to enter updated documents showing continued employment authorization on or prior to the expiration date. Please note that if the I-9 that you’re reifying is the previous version, you will need to complete section three on the new version to staple it with the original.
Monica Schwing (00:31:31):
Now, the second reason that we use… or the second most common reason that we use section three here is when we rehire a previous employee. I think I saw this question come through at one point. Of course, we’re going to want to keep our I-9 retention period calculation in mind. But when we rehire someone, you’ve got two options. You could absolutely complete a brand new I-9. We’re going to keep the original for the full retention period, but we could absolutely complete a full new I-9.
Monica Schwing (00:32:04):
Or, if you prefer, if the employee is rehired within years of the date that their previous I-9 was completed and they’re still lawfully eligible to work, meaning they didn’t indicate any temporary work authorization in section one, you can update box B here on the screen of their original I-9 with their rehire date followed by your signature and date. So it’s a nice little workaround for those employees rehired within three years. And you can do this, this is all true even if the I-9 that they completed at the time of initial hire isn’t the current version, which is really nice.
Monica Schwing (00:32:45):
All right. So let’s shift gears because the acceptable I-9 documents are a confusing section of the I-9, at least I find them to be a little confusing. I want to discuss them in greater detail here. I’ve done my best to make this succinct and informative. If you’re anything like me, you are likely not a document expert. That’s totally fine. For the purpose of the I-9, you’re expected to accept documents that reasonably appear to be genuine and relate to the person presenting them. We’re going to review and discuss the three different lists over the next couple slides, but I want to start high level.
Monica Schwing (00:33:22):
For completion of the I-9, employees must present either one document from List A or one from each of Lists B and C. I’ve already mentioned that employers may not specify which documents an employee must provide for the I-9. So what I like to do is provide this list of acceptable documents to the employee in preparation for completion of the form. So I’ll send this out with like my new hire packet or an email in advance of that first day so they come prepared. However, I do want to share what I’ve seen most in my career.
Monica Schwing (00:33:57):
We bring what’s usually easiest to dig out of the safe or wherever we’ve got these documents stored to bring to HR in the first day of employment. So most frequently, I’ve seen a passport or a passport card. Honestly, you have to work pretty hard to get this and only the one document is needed. So I think it’s popular for these reasons. Second to that is the driver’s license and social security card combination. Third most popular is a driver’s license and birth certificate combination. Having said that, I’ve seen nearly all of the documents listed on the following slides in various shapes, sizes, and states of wellbeing.
Monica Schwing (00:34:36):
All right, so let’s look more closely at List A. And again, this is the list for which an employee must provide only one document. This list includes heavy hitting documents that trump all the others because they validate both identity and employment authorization using the same document. So these include things like a US passport, passport card, a permanent resident card, or a foreign passport that includes temporary work authorization. Now, I do want to let you know for those of you listening really closely, I’m not able to dive into proper List A documentation for employees authorized to work on a visa today.
Monica Schwing (00:35:12):
But as those of you with these employees are likely aware, there are additional requirements for proper documentation in this List A column. All right. Now, as I mentioned, if an ID from List A is not presented, then the employee needs to present one from each of Lists B and C. Now, I refer to these as picture and paper lists. List B is the picture list. It contains documents such as a driver’s license or a state ID, a school ID with a photograph, a US military card, or a military dependence card, just to name a few.
Monica Schwing (00:35:51):
Then List C, the paper list, contains documents like a social security card, various types of birth certificates, a native American tribal document, US citizenship ID card, and a couple of other less utilized options. All right. A couple of other tips about acceptable documents. First is that all documents presented must be unexpired with the narrow exception for those List B documents temporarily related to COVID-19. So all other documents must be unexpired in following that flexibility. So too must be List B documents. This was actually a change with the 2009 version.
Monica Schwing (00:36:37):
For those of you out there that have been in HR for a while, it was a shift in 2009. Prior to that, we could actually accept some expired documents at the time of hire. Now, that strict three-day timeframe that I’ve talked about for I-9 completion bodes the question of, what in the world are we to do if an employee isn’t able to produce the required documents or doesn’t do so within that timeframe? Well, first, as I mentioned, I always recommend that we inform the employee that documents are required on their first day of work.
Monica Schwing (00:37:07):
Again, I’ll give that list of acceptable documents with my offer letter packet or pre-employment packet, however you’d like to communicate with your new hires. I might also consider adding a question to the employment application regarding employment authorization. I’m going to give you some samples in the next section of presentation. Then if you’ve got an employee who’s just working to obtain the correct document, maybe it’s stuffed away in a safe deposit box or it was just forgotten on the first day, I recommend allowing the employee to work for up to three business days and just making sure that you make the due date for the missing documents really clear.
Monica Schwing (00:37:44):
Now, if the employee’s unable to present the required documents within three business days, they could present to you an acceptable receipt within that timeframe in lieu of the required document. So I want to take just a brief detour and I want to talk about what’s known as the receipt rule. This rule is really designed to cover situations in which an employee is indeed authorized to work at the time of hire, but they’re just not in possession of a document on the list. There are strict guidelines to this rule. I’m not going to go into all of them.
Monica Schwing (00:38:17):
But it is just important to know that employees could submit to you a receipt for a replacement document when their document has been lost, stolen, or damaged. That receipt fulfills the verification requirement for any document, List A, B, or C, and it’s valid for 90 days. After the 90 days, the employee has to present the replacement document to complete the I-9. So if you accept a receipt for section two, just make sure to flag, maybe on Outlook or something, that the employee’s got 90 days to present the replacement document.
Monica Schwing (00:38:52):
Now I’m going to round back and answer the rhetorical question that I posed, what in the world do we do if the employee hasn’t provided the necessary documents? After three days, with no documents or receipts, technically, employment must be terminated based on inability to meet the employment verification requirements. It is unlawful to employ someone who’s not completed these requirements. So I would recommend terminating them. You could very well notify them of a timeframe for which time you’re going to reopen the position.
Monica Schwing (00:39:22):
So maybe you’ll say something like, “We’ve ended employment. You’ve got 10 days to produce the required documents. If you do, we’ll rehire you, we’ll do the new I-9. If you don’t, we’re going to open the position for rehire.” Totally your call, there’s no obligation to do that. All right. Final note on documents. Photocopies of documents are not an acceptable form of the document. I’ve received this question so many times along with requests for an ID to be scanned and emailed, mailed, even faxed to me from afar, all of which are prohibited by USCIS.
Monica Schwing (00:39:59):
Now, for anybody listening really closely, you’re probably calling me on one nuance here. There is one exception to the photocopy rule. The only exception that the original document be provided is that an employee may present a certified copy of their birth certificate. That’s the only allowable copy. All right. Another FAQ. Think about this FAQ in the non-COVID world. What should we do about an employee who’s hired remotely? This is probably one of the questions we get the most frequently. Unfortunately, there isn’t a really lovely, convenient answer are for this.
Monica Schwing (00:40:41):
As I’ve mentioned, USCIS requires that all documents be viewed in their original format, meaning that scanning or faxing or viewing them over video chat is not acceptable. The original documents need to be in hand of a company representative and the one signing the section two of the I-9 and reviewed in the presence of that new employee. A couple of solutions to consider. You could certainly have the employee’s manager fly to the location of the new employee, train that manager on how to complete the I-9.
Monica Schwing (00:41:13):
You can fly the employee to a headquarters location, complete it with them within three days of their hire date. Or another option is you can designate a non-employee representative to complete section two of the form. So you might designate a notary where that remote employee lives. Just keep in mind what we reviewed earlier and that the employer is ultimately responsible for this obligation. I do want to share a couple of other options here. I’ve heard of people using a local vocational services organization to complete section two.
Monica Schwing (00:41:48):
I’ve actually even heard from a USCIS representative that they recommended using a local sheriff’s office. I’ve never done that. I’ve never heard from anybody who has, but I suppose that that would absolutely be an option to complete section two of the form. All right. My second to last slide on documents. I wanted to provide you a little bit of a cheat sheet, so for those of you who prefer to complete the paper version of the form and you don’t benefit from the pre-populated issuing authorities in section two.
Monica Schwing (00:42:21):
In full candor, my first few years in HR, I really struggled to remember the proper issuing authority for each of the various documents. Honestly, I’m pretty confident, like a little bit too creative here at times. So what I did is I created myself this little table of the documents that I saw the most frequently and I taped it to my computer monitor. When I had a doubt about the issuing authority, I’d leave that section blank until I got back to my computer after I checked in new hires and I’d fill it in on their I-9 then. I just wanted to pass it along in case you have my same sense of creativity here on the I-9.
Monica Schwing (00:43:00):
All right. Another question that we get relatively frequently is what if an individual social security card states, “Not valid for employment,” or “Valid for work only with DHS authorization”? So if it’s got this, it’ll be all caps right on the card. You’re never going to miss this. If an individual provides a Social Security Card with either of these statements, that card is not valid for employment or acceptable as a document for the I-9 purpose for establishing work authorization. A card with this cannot be used as a List C document.
Monica Schwing (00:43:40):
Now, note that these could be issued to those with time-limited work authorization, like an H-1B or a student visa. If so, they’re going to come with the right documents for List A, but we cannot accept the Social Security Card for List C. What we’ll do is let the employee know that’s not a valid List C document, give them that list of acceptable documents, and ask them to provide something else to substantiate their work authorization. All right, we made it through a lot of slides on the details of the I-9 and the nuances around them.
Monica Schwing (00:44:16):
I want to shift gears to a couple of other I-9 considerations as well as the penalties for paying close attention to all those details that we’ve discussed so far. Now, I really don’t intend for this to be scary or a lecture, but rather just for you to know and understand why accurate completion of the form is such a huge responsibility for all employers and why we’re spending an hour emphasizing it. All right. I want to briefly talk about I-9 employer penalties. There are civil and criminal penalties for knowingly hiring or continuing to employ an unauthorized alien, for failing to comply with the employment eligibility requirements, and for misusing identity documents.
Monica Schwing (00:45:03):
There are also unlawful discrimination penalties for engaging in unfair immigration-related employment practices. We’ll talk about those next. As I’m sure you can imagine, the financial penalties for these violations, they vary greatly depending on the exact violation and the level of the offense. But I do want to put it into perspective. I checked again yesterday and failure to properly complete, retain, or make the I-9 available for inspection could result in a civil penalty in amount varying between $234 and $2,322 for each violation.
Monica Schwing (00:45:41):
The DHS is going to take into account things like the company size, any good faith effort made by the employer, the seriousness of the violation, and any history of previous violations. They’re going to take all of that into account when assessing a penalty. But multiplied by the number of current and previous company employees and the I-9s you’ve got to have on file, this penalty can absolutely become financially burdensome in a hurry. Now, the Immigration Reform and Control Act of 1986 makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment based on an individual’s citizenship or immigration status.
Monica Schwing (00:46:24):
Every now and then, I still see employment applications or job ads that specify that the position is only available to US citizens, which is prohibited by law. Our focus is on those who are authorized for employment, not on their citizenship status. In the I-9 context, this means that employers may not request completion or proof of the individual’s documents for the I-9 ahead of extending that firm job offer. And always remember that it’s up to the employee which document or documents they provide for completion of the I-9.
Monica Schwing (00:47:05):
All right. I alluded to this a couple of slides ago and we may include… I’ve got two on the slide, two different yes, no questions on your employment application to confirm just simply whether or not an individual’s authorized to work in the US. You could include one or both of these questions. I want to focus a little bit on the second one. “Will you now or in the future require our company to commence or sponsor an immigration case in order to employ you?”
Monica Schwing (00:47:37):
If a candidate says yes to that and you are not in a position to sponsor employment, at that point, you may lawfully reject the job applicant because if they’re hired, that individual is going to ask the employer to take steps, to obtain authorization to employ them, to sponsor an employment-based immigration case. So if you add these to your employment application, please just do so consistently of all applicants, not just of those who you suspect might need visa sponsorship or who may not be obviously eligible to work in the US. If you’re going to use them, use them for everybody.
Monica Schwing (00:48:18):
All right. I want to mention the E-Verify system in this next section. This is by no means a comprehensive training on the system, but I do want to be certain that you have a sense of what it is and when it’s required. Simply put, E-Verify is USCIS’s free internet-based system that helps employers quickly and accurately compare information provided on the I-9 by that newly hired employee against millions of government records, including DHS and social security administration records, to confirm employment eligibility.
Monica Schwing (00:48:56):
Now, probably the very most important thing to note about this program is it doesn’t change any of the I-9 requirements that we’ve discussed. E-Verify is in addition to the I-9 and it happens after the I-9 is completed. I know I’m really hounding this, my tone of voice is changed a little bit. I get a lot of people saying, “Oh, no, we don’t do the I-9. We do E-Verify.” This is not an either/or option. If you use the E-Verify system, we’ll talk about when and who on the next slide, but it is after completion of the I-9.
Monica Schwing (00:49:33):
So E-Verify is optional for most US employers, but some are required by either federal or state law to utilize the system. I’ve included a list on the slide here. If this requirement applies to your organization, it’s important that you’ve got a deeper understanding of what I’m going through today of the system and its requirements. Now, if you’re a multi-state employer and you’ve got some E-Verify states, you can opt to E-Verify only in those required states or you could absolutely do it across the board consistently, your call.
Monica Schwing (00:50:06):
If federal or state law does not require your business to use E-Verify, you could make a strategic decision to use it voluntarily if you’d like. There are a couple of benefits and drawbacks to doing so. So if you utilize the E-Verify system, whether that’s because you’re required to do so or because you’ve voluntarily elected to do so, there are a couple of important things to keep in mind. First, I mentioned earlier when we were looking at section one that the individual’s Social Security Number is optional there. Well, if you participate in the E-Verify system, it’s required.
Monica Schwing (00:50:45):
Second, the E-Verify system requires that if the employee presents a List B document, it’s got to include a photograph. Now, I mentioned several times that an employer may not specify which document an employee provides for the I-9, so this may present a challenge. It’s definitely in contrast to other things I’ve said. In this case, if you’re using E-Verify, List B document has to have a picture. You’re going to notify the employee that you participate in the E-Verify system. If the employee objects to providing a photo document, perhaps for religious reasons, just call E-Verify directly.
Monica Schwing (00:51:25):
Lastly, using E-Verify, certain documents have to be copied for E-Verify’s photo matching document. So if an employee presents a US passport, a passport card, a permanent resident card, also referred to as a Green Card, or an employment authorization document, the employer must obtain a copy of it and retain it with the I-9. You’re only required to copy those documents to complete with E-Verify… Excuse me, to comply with E-Verify’s requirements. This one also might feel a little bit confusing, right? Let me clarify just a bit.
Monica Schwing (00:52:01):
First, remember that the company does not have to copy documents presented for the I-9. There’s no requirement on the I-9 that we take copies of everything presented. However, if you participate in E-Verify, which again is totally separate from the I-9 itself, these very specific documents need to be copied. Whether or not you copy any other document is at your discretion. All right. One last pivot. Let’s talk about running an internal read, far less scary, I-9 auditing process. We do have an I-9 audit worksheet available on our site that provides additional details on the process as well.
Monica Schwing (00:52:43):
All right. As we shift into this, I’d like to run our second poll. I’m curious, have you ever audited your I-9 files? “Yes, we audit them regularly.” “Yes, we’ve audited them following an inquiry.” “No, but I plan to take a look.” Or, “No, and I’m going to wait and see.” “I’ll audit them if a need arises.” All right. While we’re letting this poll run, I’m going to remind you of a couple things. I will try to get to as many questions as I can at the end. We will email out a PDF of the slides that I’m going through. You will have those and the recording. We aim to get that out within about 24 hours following today’s presentation.
Monica Schwing (00:53:32):
All right. Let this run for another couple of seconds. I see still a lot of results coming in, so thank you. Let me get a sip of water while we’re doing this. (silence) All right. Let’s give this five more seconds. Three, two, one, final clicks. All right, let’s take a look at the results. Most of our audience today, 55%, say they do not audit them, but they plan to. I love that. I’m glad to hear that. Then we’ve got 25%, yes, we audit them regularly. Great results. Thank you so much for participating in that.
Monica Schwing (00:54:16):
All right. So let’s talk about some tips for auditing. I’ll give you my inclination on when. It can certainly be beneficial to conduct an audit of the I-9 records. Doing so can really be critical to an employer’s compliance efforts. However, one note of caution here, it is really important to be aware that the findings from your audit can and likely will become part of regulatory or legal proceedings against the employer if they’re not handled right.
Monica Schwing (00:54:46):
I don’t mean to be scary, and I would do an audit, but if you’re an employer and you find things and you don’t address problems found in the audit, it can actually increase your liability because the audit would be evidence against the employer. If you found mistakes and you didn’t correct them, they could be equivalent to willful violations. So let’s just make sure that if we’re doing them, we’re going ahead, we’re documenting our audit really well, and we’re correcting any mistakes that we find.
Monica Schwing (00:55:13):
Another thing to minimize the risk of an audit and any findings being used against the employer, it’s recommended to either have an employment attorney conduct the audit or conduct it according to their oversight. When we do an audit conducted either by an attorney or at their direction, the results of it are protected by attorney-client confidentiality and they’re considered privileged. All right. So in regard to when to conduct an audit, I’ll tell you this. If I were new in a position with the company, I would audit the I-9 files.
Monica Schwing (00:55:46):
In my opinion, there’s just simply too much risk for not having these files in good order. If you are in the HR manager role, you’re likely going to be on the hook for these errors whether or not they occurred under your watch or not. Also, if you have a hunch that your files are not looking quite as sharp as you’d like or maybe something during my presentation has caught your attention, I’d certainly recommend conducting an audit. If you find yourself in a situation to conduct an audit or you have any questions about your findings, please do reach out to an HR professional or to your employment attorney as you proceed.
Monica Schwing (00:56:22):
All right, I’ve got a couple of steps on conducting an internal audit on the slide here. I will elaborate on them just a bit. First is, organize the documents and determine priorities for corrections. For me, I would assess active employees without an I-9, active employees with an incomplete or incorrect I-9, and then terminated employee I-9s. Honestly, tracking down terminated employees is going to be difficult if not near impossible, so we’re going to just document our efforts here. Next, we’re going to reach out to each employee who’s either doesn’t have an I-9 on file or their I-9 has an error.
Monica Schwing (00:56:58):
If you’ve got employees and they’re either missing an I-9 or perhaps say never submitted documentation for section two, it’s recommended that you let them know that this information is missing and require the employee to bring documents to establish work authorization on the next day that they work. I recommend that you keep records of all of your communication with the employees in your audit file. Then when that employee bring in their documents, you’re going to fill out the I-9 with them.
Monica Schwing (00:57:27):
You’re going to use their original hire date, not backdating that, remember that needs to match payroll, and the current date with your signature on the form. Then it’s recommended that you attach a memo stating that when you conducted an audit you determined that there was no I-9 on file and you had employee complete it at the time of the audit. Now, if an employee doesn’t bring in documentation within your required timeframe, you may terminate employment based on inability to substantiate work authorization. Remember, we’ve got to have this form on file in order to lawfully employ anybody.
Monica Schwing (00:58:05):
You may certainly rehire that person if they’re able to produce the documents to complete the I-9, but keeping them employed without a completed I-9 is a violation of USCIS’s requirements. Now, if your audit identifies errors to the forms, which hopefully is more likely, you can absolutely make some minor corrections. Let me give you a couple of tips on this. Per USCIS’s, for minor corrections, you or the employee, depending on where on the form the error is located, you can draw a line through the incorrect information, enter the correct information and initial and date the correction on that original form.
Monica Schwing (00:58:43):
If your audit results in multiple errors, just redo the section on a new I-9 form and attach it to the original. Any major errors found will also require a new I-9. And again, you’re going to want to attach a memo where you make adjustments from your audit. Final note on audits and corrections. Do not white out or use a blackout marker to eliminate any of the original information. Don’t try to conceal any of the changes that you’ve made. Lastly, I’ve got recording the audit. I feel like I talk about this in an HR context probably 20 times a day.
Monica Schwing (00:59:18):
Record, record, record, document your efforts, document your communication. I see that as absolutely a key to HR and certainly to conducting an internal I-9 audit. All right. So I’m going to take a moment to grab a sip of water, and I’m going to peruse through the questions we’ve got. Far more questions that I have time for, but I’m going to try to pick some out that I’ve seen come through though that will be helpful for everybody. So I’ll be right back.
Monica Schwing (00:59:44):
Monica Schwing (01:00:06):
All right. So I’ve got a couple of great questions here. One that came in early on was, “We were told that we can keep our I-9s in their personnel file because we have a media access to these files versus keeping them in a three-ring binder. Is that no longer allowed?” Great question. There’s no specification for where to physically store them. My recommendation that they are in a file on their own, so all of our current employee I-9s, all of our terminated employee I-9s, is really just for ease of access.
Monica Schwing (01:00:37):
You can keep them in their personnel file, but remember, if you’re audited or if there’s a request from a government official, they need to then be pulled out of the personnel file, they need to be separate. It’s really up to you. I think I mentioned early on that it’s a best practice from employment attorneys to keep it separate, but it’s totally your call. The most critical thing is that we can access them when needed and that we’re keeping them for the full retention period. Now, on the retention period, I saw a couple of questions. Okay, here we go.
Monica Schwing (01:01:11):
“Should you retain the documents used for completion of the I-9 for the same length? I’ve worked for companies that require the immediate destruction of the documents.” It’s a good question. In my opinion, if you’re taking a copy of the document for completion of the I-9, I would indeed staple it with the I-9 and retain it for the same retention period. I’m not sure whether USCIS specifies on that, so you might want to look into it. But if we’re taking the copy that is for completion of section two, I would staple it and retain it for the same period.
Monica Schwing (01:01:51):
Let’s see. Okay. “If the company lays off its personnel and there is a possibility the employee won’t come back, is there a rule for maintaining I-9s?” The rule for maintaining I-9s following separation, regardless of why, whether the employee resigned voluntarily or whether the employer laid them off, we’ve got to keep those for that full retention period. Remember that’s… What is it? Three years after the date the employee started work or one year after the date of termination, whichever of those two dates is later. I’ve got another question here about if we’ve rehired people more than once.
Monica Schwing (01:02:36):
Can we use that same I-9 every time they restart working? I would only use section three once, fill in the date and your signature where we rehired them. If you rehire them again, and again, it’s got to be within three years of the date that that first I-9 was completed, I would do section three on a new I-9 and staple it with that. I would not squish more than one date into section three. Let’s see here. Okay. Here’s a good one. “When there are updated versions, should each employee fill out a new version?” I’m so glad that you asked that. No.
Monica Schwing (01:03:11):
We got the most recent version, it’s dated October of 2019, we got it early in 2020. No, our currently employed employees, they do not need to complete another I-9. Thank goodness! Right? This is only for us to use from that date moving forward for our new hires. So glad that you asked that. I’ve got a question here about how do you obtain the smart form. It’s uscis.gov. That’s U-S-C-I-S.gov. I wish that I knew the full extent of the URL. You could also probably do “USCIS form I-9” in your toolbar. We also have it on our site as well. All right, let me see if I can squeeze in another question or two.
Monica Schwing (01:03:51):
There’s so many good questions. If you have our service, please do feel free to call in with these questions as well. Let’s see here. All right. Got a lot of questions about the slides. Again, we are emailing those out. “What if your employees work out of state at different locations? How do I get to verify the I-9?” Okay, so I think I answered that one. Hopefully this came in before I did the remote employee FAQ. We’ve got to see them ultimately. Outside of this COVID exception, we’ve got to see the employee within three days following their date of hire or designate a non-employee representative to act as the employer representative and complete section two.
Monica Schwing (01:04:40):
You do have another option there, but we still have to get that I-9 completed. All right, let me sneak in one more. Oh, here’s a good one. I love this. Okay. “We are a seasonal company. The employees aren’t technically terminated. Do we still need to fill out a new I-9 at the restart of every season? Operations continue for some employees year round?” So if you are not officially terminating them, then no. If they’re still on the book, still employed, you wouldn’t need to redo the I-9 for that rehire. How do you view someone who just voluntarily doesn’t return? Is there really not a lapse of employment there?
Monica Schwing (01:05:24):
In the ski industry, we used to separate employment in April and then see who came back the next winter season. But technically, if they’re still employed, still on your books, you’re carrying them, if you will, then there wouldn’t have been a separation of employment. Okay. I know these are great questions. I really appreciate it. I know that I only scratched the surface on the hundreds of questions that were chatted in. I’m sorry that I couldn’t get to more, but like I said, if you’ve got our service, don’t hesitate to reach out.
Monica Schwing (01:05:51):
I hope that this demystified the I-9 a little bit for you. As you can tell, I’m pretty passionate about it. I get excited, talk a little quickly. I really appreciate you spending a little over an hour of your time today with us and I hope that you have a great rest of your day. Thank you.