I-9 Storage and Compliance Update
Employers are required to verify the identity and employment authorization of every person that they hire. The Form I-9 is used for this verification and must be completed with the required supporting documentation for each employee whether they are citizens are non-citizens. When Congress put these sanctions into place they also prohibited employment discrimination based on citizenship or national origin.
Since January 22, 2017 employers are required to use the new I-9 form which expires August 31, 2019. An employer does not need to complete the updated form for existing employees, just for their new hires. Be aware that there are stiff penalties for using an outdated form.
Employers must ensure that the Form I-9 Section 1 is completed by the employee on the first date of employment. The review of the employees supporting documentation as well as the completion of Section 2 must be complete within three business days of the date of hire. The employee is required to be physically present when the Acceptable Documents are examined.
The I-9 Form is not submitted to U.S. Immigration and Customs Enforcement, a part of the Department of Homeland Security or any other government agencies. It is simply required to be completed and stored by the employer to be readily available for inspections.
The I-9 Form and Acceptable Documentation must be retained for three years after the date of hire or one year after employment is terminated. Photo copies or faxed copies of the document are not acceptable for records. The original document with an ink signature must be on file. If paper copies are kept it is recommended that these be kept separate from other employee records and in a locked cabinet to protect the individual’s privacy.
Electronic storage is permissible but must be kept on a system that could be accessed by agencies of the United States. It is important to keep in mind that these files or storage system should have strong security features to ensure that the employee’s privacy is protected and the information is safely stored to protect identities. There are also other guidelines required for electronic storage which include:
- Reasonable controls to ensure integrity, accuracy, and reliability of the storage system
- Reasonable controls that prevent and detect unauthorized or accidental recreation, additions, deletions, or deteriorations of the Form I-9 including the electronic signature
- An inspection and quality assurance program that regularly evaluates the electronic generation of the system, and includes periodic checks
- An indexing system that allows the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system with immediate access.
- The ability to produce high degree of legibility on paper copies or video display.
If you choose to use electronic storage for the I-9 you must also have the following items showing the business process for the electronic storage system available:
- How the retained Form I-9 was created
- Show Modification and maintain the retained Form I-9
- Establish the authenticity and integrity of the forms
Storage of the documents may also be kept on microfilm or microfiche. In the event that a government agency requests an inspection of the I-9 Form employers must make the I-9 Form including copies of any of the employee’s documents retained available to agents no later than three days from the time requested. If the forms are stored offsite the employer can notify the agent where they are stored and make arrangements for the inspection.
The following government agencies may inspect these forms:
- Department of Homeland Security
- Immigrant and Employee Rights Sections at the Department of Justice
- Department of Labor
These responsibilities were put on employers by the Immigration Reform and Control Act of 1986 and further provisions made with the Immigration Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Failure to comply with Form I-9 employment verification requirements can result in civil penalties up to $2,156 for each form for the first offense.
There are multiple other Civil and Criminal violations that can be enforced in relation to the I-9 Form. These penalties were increased significantly August 1, 2016 with some of them almost doubling. Employers need to know the rules, comply with guidelines, and ask the experts for help when there are questions.