7 things employers must know about the I-9 Form

Photo by Nitish Meena on Unsplash

Earlier this week, the Trump administration announced that it has doubled the number of worksite investigations and audits conducted by Immigration and Customs Enforcement. Its express goal is to make sure businesses are not employing people who are in the U.S. illegally.

What is such an audit? Simply, it’s a review of business records, specifically I-9s.

In light of this news, over the next two days I’ll be taking a deeper look at employers’ obligations to comply with immigration laws. Today, we’ll examine the I-9 itself, and tomorrow we’ll discuss what to do (and, maybe more importantly, what not do) if ICE or another agency shows up at your door asking about I-9s.

What do you need to know about the I-9 Form? Here are seven important things that should be front of mind:

1. I-9s are low-hanging fruit for any employer. The government makes the form available online, complete with instructions to how to fill it out.


2. You must complete an I-9 at the beginning of employment for every employee you hire (except for employees hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times). It does not apply to independent contractors (but be wary of who is, and is not, a bona fide independent contractor).


3. An employer’s I-9 obligations do not depend on the citizenship of the employee. All employees means all employees, regardless of citizenship or nationality.


4. All employees also means all employees regardless of tenure or length of service. The obligation to retain an I-9 for each person hired applies from the date of hire, even if the employment ends shortly thereafter or if the hired employee never completes work for pay.


5. Employers must retain I-9s for the later of three years from the date of hire, or one year from the date of termination. You can choose to retain them on paper, microform (really), or electronically.


6. You may choose to copy or scan documents an employee presents when completing an I-9. Making photocopies of an employee’s document(s), however, does not take the place of completing or retaining the I-9 itself. If you choose to retain copies of an employee’s documents, to avoid a Title VII violation you must do so for all employees regardless of actual or perceived national origin or citizenship status.


7. The Department of Homeland Security, the Department of Labor, and the Immigrant and Employee Rights Section of the Department of Justice are all authorized to inspect an employer’s I-9 forms.

And this is where we’ll pick up tomorrow. What do you do when then feds show up at your door?