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Business Crimes BulletinFeaturesImmigration LawLitigation

Immigration Form I-9: A Form That Can Have Severe Consequences

By Marjorie J. Peerce, Dennis Burke and Maya Salah
October 01, 2019

You are the general counsel of a company with locations all over the United States and thousands of workers. One day, agents from the U.S. Immigration and Customs Enforcement (ICE) agency, a division of the U.S. Department of Homeland Security (DHS), arrive at one of your largest warehouses and serve a forthwith subpoena and notice of inspection (NOI). They're seeking information about your company's hiring practices and Form I-9 for all employees in that warehouse for the past three years. You call your Director of Human Resources and you begin a discussion about what to do. This article addresses the history of Form I-9 and current initiatives underway by DHS.

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What Is a Form I-9?

In 1986, the Employment Eligibility Verification, Form I-9 was born with the passage of the Immigration Reform and Control Act (IRCA). IRCA requires employers to verify the identity and employment authorization of each person they hire, complete and retain a Form I-9 for each employee, and refrain from discriminating against individuals on the basis of national origin or citizenship, such as refusing to hire people from specific countries or question an applicant's immigration status before making an employment offer.

To ensure compliance, IRCA requires employers to ensure that each employee completes Section 1 of the Form, and presents documents to the employer from a List of Acceptable Documents which establish his/her identify and employment authorization. Employers cannot require the employees to present particular documents, nor may employers question the validity of the documents unless they appear non-authentic on their face. Employers must ensure that all parts of the Form I-9 are completed correctly and in a timely manner. Section 1 of the Form must be completed by new employees on the first day of work for pay; and Section 2 must be completed by the Employer or the Employer's representative by the end of the third day after the first day of employment. After completing the Form, employers are required to retain the Form I-9 for all current employees — for terminated employees, employer must retain the employees' I-9s through the later of: 1) three years after an employee's hire date; or 2) one year after the employee's termination. Retention of these documents in an up-to-date and well-organized way is a key component of compliance and preparation for government review.

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