Form I-9 Compliance: Frequently Asked Questions

Form I-9 is a mandatory document for all U.S. employers, designed to verify the identity and employment authorization of individuals hired for employment in the United States. This includes both citizens and non-citizens. Employers are required to ensure the proper completion of Form I-9 for everyone they hire, retaining the form for a designated period and making it available for inspection by authorized government officers. Compliance with Form I-9 means that U.S. employers must comply with all of the legal requirements governing Form I-9. 

The significance of Form I-9 extends beyond mere documentation. It plays a crucial role in:

• Enforcing Legal Employment: It ensures that employers are hiring individuals who are legally permitted to work in the U.S., thereby upholding the law.
• Preventing Unauthorized Employment: It acts as a deterrent against the hiring of undocumented workers, which can undermine legal labor markets.
• Protecting Workers: It safeguards workers from discrimination based on nationality or citizenship status, promoting a fair and equitable workforce.

Failure to comply with Form I-9 requirements can lead to serious repercussions for employers, including:

• Financial Penalties: Fines for non-compliance can range from minor amounts for paperwork violations to significant sums for knowingly employing unauthorized workers. You can learn more about the penalties regarding Form I-9 fines read our blog: Form I-9 Fines Increase Again - What Employers Should Know.
• Criminal Penalties: In severe cases, such as repeated offenses or evidence of harboring illegal workers, criminal charges may be brought against the employer.
• Reputational Damage: Violations can also tarnish a company's reputation, impacting its business operations and relationships.

Form I-9 requires documentation that proves the employee's identity and authorization to work in the U.S. These are divided into:

•  List A documents: Provide both identity and employment authorization verification 
• List B documents: Establishes identity only.
• List C documents: Provides only employment authorization verification.

Employees must present one document from List A or one document from both List B and List C.

It's important that employers avoid requesting any specific documents - a practice that can be considered discriminatory under the Immigration and Nationality Act. Instead, employers should present the employee with the "Lists of Acceptable Documents" accompanied with the Form I-9 and allow the employee to choose which acceptable document to present. The document must be unexpired and resonable relate to the person presenting it. In certain cases, receipts for the application to replace lost, stolen, or damaged documents can be presented in lieu of the actual documents. To learn more about receipts visit the I-9 Central website. To learn more about avoiding discrimination during the I-9 process download our e-book: Preventing Discrimination During the I-9 Process. 

An electronic I-9, also known as electronic I-9 software such as GryphonHR, is a solution used by HR and staffing professionals to help them comply with complex Form I-9 requirements. An electronic I-9 solution can also  to streamline the Form I-9 and E-Verify process. Often, these solutions integrate with other onboarding or payroll systems for seamless HR procedures.

Form I-9 can be kept using paper, electronic systems, or both. For paper forms, after completing, you can scan, upload, and store them electronically, then dispose of the original. Any electronic system for creating or storing Form I-9 must have:

• Adequate measures to ensure system integrity, accuracy, and reliability.
• Safeguards to protect against unauthorized or accidental changes, deletions, or damage to an electronic Form I-9, including the electronic signature if used.
• A regular inspection and quality control program to assess the electronic system, including checks of stored electronic forms and signatures.
• An effective indexing system for easy record identification and retrieval.
• The capability to produce clear, legible paper copies from the electronic records.

According to USCIS, you are allowed to employ various electronic I-9 systems for creating or storing Form I-9, as long as these systems are accessible and adhere to regulatory guidelines. It's permissible to change between systems, provided each system conforms to the necessary performance criteria. For every electronic system used, you must maintain and, upon request, furnish comprehensive details regarding the system and how it is used. This includes information about the method used for indexing documents and records for retrieval. It is not mandatory to have separate indexing databases for each system if you can effectively accomplish similar results through alternative means.

When using an electronic signature for Form I-9, your electronic signature system must:

• Enable users to confirm they have read the attestation statement.
• Link the electronic signature directly to the corresponding Form I-9 completed electronically.
• Capture the electronic signature at the moment of the transaction.
• Generate and save a verification record of the signer's identity.
• Provide a printed confirmation of the transaction upon the employee's request.
• Implement a way for users to acknowledge their agreement with the information provided in Section 2.

Failure to adhere to these requirements when opting for an electronic signature on Form I-9 may lead to the Department of Homeland Security (DHS) determining that the form was not correctly completed, placing you in violation of the Immigration and Nationality Act.

It's important to ensure that you're electronic I-9 system or I-9 software meets all electronic I-9 compliance requirements, including a special set of requirements for digital signatures.

The term Remote I-9 is generally used when referring to employers who oversee Form I-9 processes for employees located in a remote location, such as a  a different location than their  hiring office or worksite. 

The Form I-9 must be completed by the employee no later than the first day of pay.  Section 2 of the Form I-9 must be completed by the employer no later than 3 business days following the hire date. Section 2 requires verification of the employees work authorization and identification documents. Any person can act as an authorized I-9 representative of the employer to verify documents and complete Section 2, however, the employer is liable for any mistakes or errors. If an employer is enrolled in E-Verify and meets certain requirements for use of the "alternative document procedure", they may inspect the documents through a live video conference with the employee and must meet certain requirements.

If the employer does not qualify for the alternative document procedure, they must ensure that someone is physically present with the employee to examine documents.  

Learn more about remote I-9 management in our blog: How to Comply with Remote I-9 Verification Requirements, or refer to the Form I-9 instructions and additional information from USCIS at the I-9 Central website. 

The calculation of the retention period for a former employee's Form I-9 should commence once they cease their employment with you. According to federal guidelines, you are required to preserve the Form I-9 for each employee for either three years from their hiring date or one year from the termination of their employment, depending on which of these periods is longer.

If mistakes or inaccuracies are found on a completed Form I-9, the appropriate way to amend them involves striking through the erroneous data (ensuring the original text remains visible), inserting the correct data next to it, and marking the change with your initials and the date. It's crucial to avoid using whiteout or erasing the original information entirely. In instances where substantial corrections necessitate a fresh Form I-9, it's important to keep the original form together with the newly completed one.

Here are a few resources for additional information about Form I-9:

Government Resources:

• USCIS - I-9 Centeral
• E-Verify Website
• Depart of Justice, Employee and Immigration Rights Division Webpage

Free Resources from GryphonHR

• I-9 Blog
• I-9 White Papers, E-Books, and Guides
• Form I-9 and E-Verify Newsletter