Managing I-9 Form Compliance

The I-9 form or officially the Employment Eligibility Verification form, is published by the United States Citizenship and Immigration Services (USCIS) and is required to be completed by all employees based on the Immigration Reform and Control Act of 1986. The purpose of the form is to ensure that the person you have just hired is eligible to work in the USA.

It has undergone a number of changes in recent years, and making sure you are using the most current version is important, particularly in light of the issues we are facing with undocumented workers and immigration policy upheaval nationally.  The current version has an expiration date of 8/31/19 and even though the date is fast approaching, as of this writing I have not seen a newer version.

Hopefully you have been requiring New Hires to complete the current I-9 form within three days of hire every year you’ve been in business since 1986. Even though it is common practice, employers may NOT tell New Hires which documents they must bring in (e.g. their Social Security card and driver’s license), but instead must provide them with the List of Acceptable Documents so they may choose which one(s) to bring in.  The best way to give the list to a New Hire is to attach it to the written offer letter.  You don’t give written offer letters?  If not, that is a critical omission in your hiring process because it is one of the first pieces of communication about the person’s conditions of employment including the requirement to complete the I-9 form.

When the New Hire reports to work on their first day they are supposed to bring in the document(s) they have chosen. A person in your company should sit down with the New Hire and carefully look at the documents while the person is completing Section 1 of the I-9 form. The company representative should complete the back of the I-9 form (Section 2) and sign and complete where a company representative’s signature is required.  This is very important!  The I-9 form has not been completed legally if there is no company representative’s signature.

Then the completed I-9 form should be filed together with all other I-9 forms in a separate file, not in the person’s personnel file. If a visa is produced that has an expiration date, the date should be entered into whatever follow up method is used and the person should be informed 90 days before the expiration of the document that a new updated document will be required.

We are often asked some of the following questions so just in case one of them is yours, here’s the answer. If we haven’t answered your question, please give us a call.

Q: I thought we had 3 days to complete the I-9 form. Why did you say it had to be done on the first day of employment?

A:   The USCIS website instructions now say the I-9 form has to be completed either before the person starts work or on their first day. The employer has until the third day to complete Section 2 with the employee present.

Q:  I don’t know if all our I-9 forms are properly completed. What should I do? 

A: We strongly suggest you do an audit of your I-9 forms and if they are in personnel files, remove them and put them in one file. When you do your audit, check for these 4 things:

  1. The employee has filled out Section 1 completely and signed where required on the front.
  2. The document information has been completed with all required numbers and dates.
  3. None of the visas have expiration dates that have passed.
  4. The company representative has completed and signed where required.

Q: I don’t have company representative signatures on all our I-9 forms. Can I just sign them now?

  1. No. The company representative is attesting under penalty of perjury that they have actually seen the documents that are listed there. If there are I-9 forms that don’t have the company representative’s signature and the employee is still employed, we recommend you ask them to bring in any of the documents listed on the List of Acceptable Documents so you can re-certify that you have seen them by completing a new I-9 form which I suggest you staple to the old one.
  2. We have people in other states that work from their homes. Can we just have them send in a scan of their documents?

A:   The Instructions published by the USCIS state: “The employee must be physically present with the document examiner.” A number of our clients use notaries in the location where the employee is located to fill out Section 2 of the I-9. The notary does not notarize the document, that person is acting on your behalf not as a notary. But if they see the documents, then they need to fill out Section 2.

Q:  My New Hire said she had her purse stolen and so she doesn’t have any documents to present.  What do I do?

A:   Your New Hire can present a receipt showing that she has requested new document(s). The receipt can be for any of the list of documents. Just write the word “receipt” and the name of the document where the document would have been listed. The employee has 90 days to bring in the actual original document. At that time cross out the word “receipt” and enter the details of the document.

Q:  Can we have the I-9 forms signed electronically and keep them in a cloud-based file?

A:   Yes, but there are rules about how you do that. If the form is completed electronically and the signature is electronically used at that time, then it will meet the requirements if there is “a method to acknowledge that the attestation to be signed has been read by the signatory and the electronic signature must be attached to, or logically associated with, an electronically completed I-9 form.” In other words, you must have a record verifying the identity of the person producing the signature. I know that many online onboarding services do it all electronically and it is fine if they also provide a way to “attest” that the person is the signer. The best idea is to do it in paper format and then store it electronically with all the other documents that need a signature.

If we haven’t answered your question above, please give our office a call at 925-310-4824 or send me an email at barbara@hradvisors.net.