Question: I’ve read in the news about the increased focus on immigration. I run a medium sized business and am worried about an I-9 audit. Can you remind me of my general obligations for I-9s?
Answer: The Form I-9 is a federal form used to verify an individual’s identity and authorization to work in the United States. Every employer, regardless of size, must complete Form I-9 each time they hire any person to perform labor or services in the United States in return for wages or other remuneration (e.g., food or lodging). The I-9 process should occur after a conditional job offer has been made and before the applicant starts work.
During the I-9 process, employers must provide the applicant with the entire Form I-9, including instructions and lists of acceptable documents. Employers should allow the applicant to choose what documentation to provide. Moreover, employers should accept an employee’s documentation as long as it appears to be genuine and belonging to the employee.
Employers should then complete an in-person, physical inspection of the documents provided by the applicant. During the review, the employer should ensure that the Form I-9 was properly completed and should ask the employee to correct errors or add missing information if necessary. Employers should then retain the completed Form I-9 and copies of the documentation provided by the employee in a secure location that is separate from the employee’s personnel file. Form I-9 records must be retained for at least three years from the date of hire or one year from the date of termination, whichever is longer.
Form I-9’s and supporting documentation may be inspected by federal immigration agencies. Normally, the inspecting agency will give employers a minimum of three (3) business days’ notice before starting an inspection. Under California law, employers must provide employees with notices before and after the inspection. The pre-inspection notice must inform all current employees of the federal immigration agency’s inspection request within 72 hours of receipt of the inspection notice from the federal agency. The notice must include the (1) name of agency conducting the inspection, (2) date the employer received the notice, (3) nature of the inspection, if known, and (4) a copy of the notice of inspection.
During the inspection, employers should present only the Form I-9s and the supporting documents requested. After the inspection, employers must provide notice to any “affected employee”—which means an individual who was identified as potentially lacking work authorization or having another document deficiency. This post-inspection notice should include a copy of the written immigration agency notice about the inspection results (often called a Notice of Suspect Documents). It should also include (1) a description of all deficiencies or other items identified in the Notice of Suspect Documents, (2) the timeframe for correcting any potential identified deficiencies, (3) the date and time of any meetings with the employer to correct identified deficiencies, and (4) the employee’s right to representation during this meeting. This notice should be hand delivered to affected employees, if possible.
The I-9 process can be cumbersome, and an I-9 audit can create significant liability for employers and employees alike. There are both federal and state penalties for failure to comply with an I-9 audit or failure to issue the required state notices. Employers with questions about the I-9 process may wish to consult with their labor counsel.