Form I-9 in No Time

Hi. My name is John Fay, and I’m here to talk about the Form I-9, a deceptively simple looking document that can cause major headaches for HR practitioners if not completed correctly.

In this fast-paced video, I'm going to discuss the key components of the Form I-9, highlight some of the most important rules to remember, and address some common questions you might have. 

So here we go. Let's say that your organization hires a new employee who will be working in the United States, and you're tasked with getting her new employee paperwork, including the Form I-9, completed on time. This is important because every one of your paid employees in the U.S. hired after November 6, 1986 is required to complete an I-9 no matter if they're part-time workers, day laborers, or even the CEO.

To better understand how the process works, let's review a new employee I-9 scenario for a fictional company, BestCo. They just hired Jane and must complete an I-9 for her as part of the onboarding process. BestCo’s onboarding specialist usually works with a hiring manager to get Jane scheduled for her first day of employment. For this example, we'll assume that the onboarding specialist is also the hiring manager who's meeting with Jane on her first day and helping her with the new hire paperwork.

The New Employee I-9 Process
Now let's review the new employee I-9 process. At first glance, the I-9 form appears simple. The new hire, Jane, must complete and sign Section 1 and attest under penalty of perjury to her citizenship status.  She must also present documentation of her choosing to establish her right to work in the U.S. The onboarding specialist must examine the documentation for genuineness and to make sure it belongs to Jane, before signing off to complete Section 2. Finally, BestCo must retain the I-9 and be ready to present it in the event of a government audit. 

The onboarding specialist may also need to enter the I-9 information into E-Verify, a government system which electronically confirms work authorization, if the employer participates in the program. E-Verify is generally a voluntary program but it may be required depending on the location, the company policies, and/or federal contracting requirements. More on that later. Quick side note, the federal government has a comprehensive I-9 handbook called the M-274, which has over 100 pages of instructions for this one-page form. No wonder so many people in HR are confused, right? But it's still a great resource for practitioners and it's available for free online.

Section 1
Alright, back to our story. First, let's look at how Section 1 of the I-9 plays out as Jane starts work as a new employee. Section 1 of the I-9 must be completed on or before the first day of work for pay. It can be completed before the first day of work for pay if an offer of employment has been made and accepted. This allows employers who use an electronic I-9 system to have the new hire complete section one before she arrives for her first day of work, which saves considerable time. It's important to remember that as a new hire, Jane must complete Section 1, not the onboarding specialist. 

Section 1 can be broken into four subparts. At the top part of the form, Jane must provide her current legal name, complete address, date of birth, and any last names previously used. Providing her 9-digit Social Security number is optional, but there's a catch. If the employer, BestCo, participates in E-Verify, Jane will need to provide her SSN, or if she doesn't have one yet, leave the field blank and then provide it later once received. A good electronic I-9 system can help you by automatically applying these complex rules to your I-9 process and help reduce or prevent mistakes.

Continuing on with Section 1, Jane must also attest to her citizenship or immigration status by selecting one of these four options. If Jane checks box three, she must provide BestCo with her USCIS or Alien Number. If she checks box four, she also has the choice of providing her I-94 number or foreign passport information. Finally, Jane must sign and date Section 1 in the space provided.  If Jane received assistance, her preparer and or translator will need to complete Supplement A of the form.  

Section 2
Now let’s move onto Section 2 of the Form, which is called Employer Review and Verification. Section 2 can also be broken into four subparts for the employer to complete. Let's take a quick look at each part and identify some common issues.

Documents
The documents area in Section 2 is the most complex part of the I-9 process and can easily trip up employers. Our new hire, Jane must present unexpired, original documentation from the Lists of Acceptable Documents that demonstrates her identity and employment authorization. Documents in list A show both identity and employment authorization, documents in list B show identity only, and documents in list C show employment authorization only. Some document categories are comprised of many different document types, so it’s important to consult the M-274 for more information on these complex document options. When completing Section 2, the onboarding specialist must ensure that Jane provides either one document from list A or a combination of one from list B and one from list C. The employer must accept any documents that our new hire Jane provides which appear to be reasonably genuine, relate to Jane, and are acceptable according to the government’s rules. The onboarding specialist may not specify which documents Jane presents or request additional documentation. In some cases, Jane may also present a receipt in lieu of original documentation for a temporary period. Jane must then present an original replacement document in accordance with the government timeframes. 

One last point regarding document review: in general, BestCo must physically examine the documents in Jane’s presence. However, if BestCo participates in E-Verify, they may be eligible to remotely examine Jane’s documents under the alternative procedure authorized by the Secretary of Homeland Security. This so-called virtual examination option requires that Jane provide a copy of her documentation for review and attend a live video meeting to present the documentation. The virtual process also requires BestCo to retain all document copies presented by Jane (both front and back, if the document is two-sided) and check a box on the I-9 to indicate that the alternative procedure was used.

Regardless of how the I-9 is completed, Section 2 also has a critical timing requirement. It must be completed within three business days after the new hire's first day of employment. So, if Jane starts work on Monday, Section 2 must generally be completed by Thursday of that week. However, if Jane is hired for less than three business days, Section 2 must be completed no later than her first day of employment. 

First Day of Work for Pay
The new hire's first day of work for pay is another crucial piece of information which must be accurately completed.  Government auditors frequently check this field against local Department of Labor records to validate whether the I-9 was completed in a timely fashion. In our scenario, the onboarding specialist should verify the date against an appropriate system of record. Once again, electronic I-9 systems can help you automate such a check.

The Signature and Employer Information
The signature part of Section 2 is fairly straightforward. It must be signed by the person who completed Section 2 and examined the documents. In our scenario, the onboarding specialist will sign and enter the signature date, her printed name and title, and the employer's business name and full address in this final part of Section 2. Nothing should be left blank.

Outsourcing
One quick note about who may complete section 2. In many cases, Section 2 is completed by the employer's representative, whether that be the onboarding specialist, hiring manager, or other HR personnel. But employers can also choose to designate a third party authorized representative to meet with the employee and complete Section 2 on the employer’s behalf. 

Using an authorized representative can be a great strategy for employers with a remote workforce or those who simply want to outsource the Form I-9 completion process as much as possible. 

Supplement B
Finally, the I-9 also has a Supplement B, formerly known as Section 3, which is used for very specific scenarios such as re-verification, rehires, and name changes. Qualifying employers can also use the virtual examination option mentioned earlier for Supplement B as well. Inspections, Remediation, and Retention

A quick note on government inspections, remediation, and retention. Typically, the most significant I-9 risks for employers rest with their historical I-9s, which may be stored in various locations throughout the organization. In the event of a Notice of Inspection, employers only have three business days to produce the records requested which are then subject to review and potential fines for I-9 errors and omissions. To help reduce that risk, employers may conduct an internal audit and correct mistakes where possible before an auditor shows up.

Another way to help reduce the risk is to purge those historical I-9s, which no longer need to be retained. While I-9s must be kept on file for every active employee, once an employee is terminated, the employer can destroy that I-9 on the later of three years after the hire date or one year after the termination date.

E-Verify
Finally, let's talk briefly about E-Verify, which is not part of the I-9 form, but is closely related. E-Verify is an online system administered by the federal government that confirms the person's eligibility to work in the US by comparing information on the Form I-9 to government records. While E-Verify is largely a voluntary program, many organizations may be required to participate because of a federal contract or state law. This map shows the states which have some form of E-Verify law, and these requirements are constantly changing. As mentioned earlier, employers may also choose to participate in E-Verify to take advantage of the virtual examination option or for other reasons. 

So, we've covered a lot of information, but we've really only scratched the surface on some of the more complex I-9 topics. If you'd like to learn more about I-9 and E-Verify issues and help stay up to date on this evolving area, please subscribe to my blog and follow me on LinkedIn. And, if your organization is interested in implementing an electronic I-9 and E-Verify solution which can help you streamline your onboarding process and also help you address your historical I-9 errors, please contact us at workforce.equifax.com.