US Immigration: What every US employer should know about I-9 compliance

Yes. If the employee enters in the first section of the form that they are an individual authorized to work under another status — meaning they’re not a US citizen, a noncitizen US national or a US permanent resident — they will be asked if that alternative work status has an expiration date. If it does, the employer must reverify the I-9 prior to the expiration date listed on the form.

Employers do not need to complete a new Form I-9, but instead may use the form’s Supplement B to record document reverification each time it is required by law. Employers are responsible for monitoring the expiration of any I-9 documents that fall under the category of an individual authorized to work in the US under another status, and for proactively reaching out to these employees before the expiration date to ensure timely reverification.

Since employees will need to once again present documentation to their employer in order to reverify their work authorization, we recommend the employer give at least two weeks’ notice of the I-9 expiration date to the employee.

Reverification is also not required when the following documents expire: US passports, US passport cards, Form I-551 (alien registration receipt cards/permanent resident cards, which are also known as green cards) and List B documents.

Pro tip for employers: Form I-9 was updated on August 1, 2023, and all employers must use that version for new hires as of November 1, 2023. Among the most significant changes to the new Form I-9 are that Sections 1 and 2 are on the same page, the rehire/reverification is on a separate page, there is a new option for virtual I-9 inspection, and there is no need to fill out every box or put N/A.

Employers must complete Section 2 of Form I-9 and they must review the I-9 documents presented by the employee that prove the employee’s identity and employment authorization. Employers should be careful to accept documents that reasonably appear to be genuine and reasonably appear to apply to the employee presenting them.

Employers can not knowingly hire a noncitizen unauthorized to work or continue to employ noncitizens knowing they are or have become unauthorized to work in the United States. Employers are prohibited from discriminating against employees due to a person’s citizenship, immigration status or national origin.

Pro tip for employers: Per federal regulations, you must retain Form I-9 for as long as the employee is on payroll. Once the employee is no longer on payroll, you must retain Form I-9 for either three years after the date of hire or one year after the termination date, whichever is later.

In this particular area of law, there is interplay between state and federal law, and states have increasingly begun to create their own plans to monitor or control employers’ hiring practices. As such, particular states may require Form I-9 to be maintained for a longer period than federal law, and individual states may impose their own penalties for non-compliance, such as revocation of a company’s license to do business in the state.

Employees are required to complete Section 1 stating their name, address, date of birth, and whether they are a citizen, a noncitizen national, a permanent resident or an individual authorized to work under another status. Employees must also present a document from the “List of Acceptable Documents” proving their identity and employment authorization. They must sign and date Section 1 attesting that their statements and documents are not false.

Pro tip for employers: E-Verify NextGen is an upcoming development that’s set to be piloted in spring 2024. It aims to streamline the verification process for both employers and employees by providing employees with greater ownership and control in the verification process. An employee will be able to set up a secure electronic account and automatically send their information and documentation to their employer.

E-Verify NextGen permits employees to create an account, resolve E-Verify tentative non-confirmation (TNCs) “in advance and directly with the government, instead of through their employer, and then receive an electronic verification response that they can use and update with subsequent employers.” Employees will have a direct link into E-Verify and their I-9 may be completed on-line.

Employers must ensure that all parts of Form I-9 are properly competed and may be subject to penalties under federal law if the form is not completed correctly. An employer may conduct an internal audit of Form I-9 to ensure ongoing compliance with the employer sanctions provision of the Immigration and Nationality Act (INA).

An employer may choose to review all Form I-9s or a sample selected based on neutral and non-discriminatory criteria. Before conducting an audit, an employer should consider the purpose and scope of the audit and how it will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process.

An employer should consider the process it will have for fielding questions or concerns about the audit and how it will inform the employees of that process. The employer should consider how it will document its communications with employees and how it will ensure consistent standards when addressing any Form I-9 deficiencies revealed by the audit.

Pro tip for employers: Put in place a company compliance policy and provide regular I-9 compliance training. Audit early and often and ensure audits are being completed by a subject matter expert. Never correct an I-9 error without initialing and dating the change, as this may lead to a charge of document fraud. When correcting paper I-9 errors, using a different color pen may be preferred.