While most employers will affirmatively answer the above question, upon review, we have found that many I-9 forms and compliance practices are deficient.  Currently, employers are subject to increasing scrutiny by Immigration and Customs Enforcement – Homeland Security Investigations, the investigative arm of the Department of Homeland Security, which has broad legal authority to enforce a diverse array of federal statutes, including immigration, employer compliance and document fraud.  HSI will review an employer’s I-9 forms as part of an audit and can impose significant monetary penalties for even minor documented noncompliance.

Since 1986, Section 274(b) of the Immigration and Nationality Act has required that an employer review an employee’s unexpired identity and employment authorization documents and attest under penalty of perjury on form I-9, Employment Eligibility Verification, that the employee is authorized to work in the US. An employer does not attest to the legitimacy of the documents when completing the I-9 form, but rather that it has reviewed the original documents presented by the employee and that they reasonably appear to be genuine and relate to the employee.  The employer must complete Section 2 of the I-9 form within three business days of the employee’s first day of employment, re-verify as necessary, and then retain the form I-9 for the longer of three years from the date of hire or one year from the date of termination. Despite the brevity of the I-9 form and relatively simple instructions, many employers do not take the time to ensure the I-9 forms are completed correctly and consistently, and we find that most employers do not have a written policy governing the hiring process.

We recommend employers take a proactive approach to compliance and annually conduct an internal audit, identifying errors on the I-9 forms and carefully correcting them.  Also, while not mandatory in all states, the employer may consider registering and begin using E-Verify, a free web-based system that allows an employer to quickly confirm the eligibility of a new employee. In certain instances, an employer may also consider participating in the ICE IMAGE certification program, a voluntary cooperative effort with ICE-HSI to review and strengthen hiring practices, ensure compliance, and minimize future enforcement and penalties.


Learn more about immigration laws and other Hot Topics at one of Haynsworth Sinkler Boyd’s 2015 HR Law Updates scheduled for Anderson, Spartanburg, Sumter, Lexington, North Charleston, and Florence.