By Nelsy C. Gómez, Esq.

Just imagine…it is Monday morning and you just grabbed your first cup of coffee. You look around your office and realize that the mental to-do list you created over the weekend just multiplied by three. Just as you sit down in front of your computer with all hopes of knocking off a few things from what seems to be a never-ending list, you hear a knock at your door. You are greeted by an officer from United States Immigration and Customs Enforcement (ICE) who has decided to personally deliver a Notice of Inspection to your workplace. You review the unfamiliar notice and realize that the officer wants to inspect your company’s I-9 files. Your face turns pale as you read that the officer will be back in 72 hours to review and collect all the I-9 files you have for your current employees and those terminated within the last three years. 72 hours?!? This once-neglected one-page, single-sided form has just become your worst nightmare. What do you do? Ignore the request? I mean, it is completely unreasonable and cannot possibly be mandatory, right? Or, do you ignore all the other pressing issues and figure out how to respond? Panic takes over.

Unfortunately, this scene frequently takes place in workplaces throughout the United States. What should you do if you are unprepared and you receive such a notice? You need to clear your desk and call in the troops. But what can you do now, before this visit, to make such an experience much more palatable? What actions can you take now, to prevent the inevitable but tamable hysteria that will occur within the extremely short 72-hour window to get all your I-9 files in order? Plenty.

Let’s review. Form I-9 has been a part of the American workforce since November 6, 1986, when the Immigration Reform and Control Act (the “Act”) was enacted. Pursuant to the Act, employers are required to verify the employment eligibility of their employees; a verification that takes place through the use of the Form I-9. Failure to properly verify the employment eligibility of employees can lead to significant civil and criminal sanctions. Fines can range anywhere from approximately $300 to the tens of thousands of dollars. Unfortunately, despite the extreme importance of this form and the severe repercussions that can result from improper completion, employers have repeatedly failed to correctly complete and maintain the Form I-9. As the United States government continues to push forward its employer-compliance efforts, these detrimental and costly errors have become more and more apparent. But, fear not. Many of these errors are preventable and/or correctable.

While the Form I-9 seems like a simple document to complete, many employers commit a number of clerical and technical errors that consistent training and internal audits can easily prevent. The following ten simple “Dos and Don’ts” can help you and members of your management team ensure successful completion and maintenance of your Form I-9. If you follow these tips, a visit from the ICE officer will be but a blip on the radar, without the headache and panic.

1. DO ensure you are using the most current, unexpired Form I-9 when new employees are hired. To determine if you are using the correct version of the Form I-9, look at the revision date which is located on the bottom right-hand corner of the form. Currently, only forms with revision dates of “08/07/09” and “02/02/09” are considered valid for use. The most up-to-date unexpired Form I-9 is available free of charge on the United States Citizenship and Immigration Services’ website (www.uscis.gov).

2. DON’T complete Section 1 of the form for the employee. Only the employee should be completing Section 1 of the Form I-9. There are very limited exceptions in which an employer or a third party can assist with the completion of Section 1. However, while you cannot complete Section 1 for the employee, it is your responsibility as the employer to ensure that Section 1 is completed by the employee correctly. Therefore, ensure the employee has fully completed Section 1 before you accept the form and place it in your I-9 files.

3. DO give the employee an opportunity to decide what documents he or she will present for inclusion in Section 2 of the form. It is not up to you which documents the employee presents to prove their eligibility for employment. There will be particular circumstances that will require you to request certain documents, but you need to make sure that the employee’s specific situation calls for you to make that additional inquiry.

4. DON’T over-document. This is a very common error. Careful review of the “List of Acceptable Documents,” which dictates the documents that are acceptable proof of eligibility for employment, states that you can either accept a List A document, or a List B document and a List C document; not all three. Accepting a document for all three lists is considered over-documentation and can potentially be a fineable offense.

5. DO establish a policy regarding obtaining copies of the documents presented for Section 2. While you are not required to keep copies of the documents your employees present for proof of employment eligibility, you are allowed to do so as long as this policy is consistently applied to all employees. Retaining copies of these documents can be extremely helpful during an audit as it may assist in the correction of errors. If you have not been retaining copies of these documents and decide to do so going forward, keep a memorandum indicating the date when this policy change was made….”

To be continued..