FORM I-9: Employment Verification

Guidance for New Hires

Excerpt from The Florida Bar Journal, Vol. 96, No. 6 (November/December 2022), authored by Giselle Carson, Esq., Corporate Immigration and Compliance attorney with Marks Gray, P.A. The I-9 Guide was also designed by Giselle Carson, Esq., Corporate Immigration and Compliance attorney with Marks Gray, P.A. For the full article and endnotes, see What Employment Lawyers Should Know About The Form I-9 Overhaul: Factors To Prevent And Mitigate Liability. The Legal Resource Center would like to thank the author and The Florida Bar Journal for their permission to reproduce a portion of this informative article and chart.

Employers’ requirements to verify a worker’s employment eligibility and identity are a minefield for potential mistakes and liability. The Form I-9 (employment eligibility verification) is a complex legal form. The employers and employees signing the form are doing so under penalty of perjury. Additionally, to comply with the law, employers must 1) verify the identity and employment authorization of each person they hire; 2) complete and retain a Form I-9 for each employee; and 3) refrain from discriminating against individuals on the basis of national origin or citizenship.

Under 8 C.F.R. §274a.2(b), employers must ensure that an employee completes §1 of the I-9 on the date of hire, and the employer must complete §2 of the I-9 within three days of hire. Employers are required to maintain I-9 records for inspection and must produce them for government inspection upon three days’ notice. As stated in Collins Foods International, Inc. v. INS, 948 F.2d 549, 554-55 (9th Cir. 1991), the employer sanctions provisions under §274A of the Immigration and Nationality Act (INA or the act), as amended by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. §1324a, are “delicately balanced to serve the goal of preventing unauthorized alien employment while avoiding discrimination against citizens and authorized aliens,” and “[t]he doctrine of constructive knowledge has great potential to upset that balance, and it should not be expansively applied.” Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security (DHS), or an administrative law judge (ALJ) may impose penalties if an audit and investigation revealed that an employer knowingly hired or continued to employ an unauthorized worker, or failed to comply with the employment eligibility verification requirements with respect to employees hired after Nov. 6, 1986.

Which Plans for the Current Form I-9 Expire on October 31?

A new Form I-9 is in the works, and it is undergoing a significant redesign. Unfortunately, this will lead to additional confusion and errors as employers attempt to train Human Resources staff who are already overwhelmed by the many changes in the employment field. The current Form I-9 is a two-page document with 15 pages of instruction included, as well as an additional manual with over 70 pages. One of the biggest mistakes employers make in the Form I-9 process is not providing adequate training, therefore, allowing untrained staff to administer I-9s. This is a bad idea for many reasons, not the least of which is that proactive training is a best practice and good faith mitigating defense.

DHS plans to streamline Form I-9 and arguably make it less cumbersome and more user-friendly. At the time of this writing, the proposed changes include 1) consolidating §§1 and 2 into a one-page form; 2) updating the List C of acceptable documents; 3) allowing employers to leave unused fields blank instead of requiring “N/A”; 4) creating a Supplement A for the preparer/translator section; 5) creating a Supplement B for formerly §3 (for rehires and verification); 6) reducing the instructions from 15 to seven pages; 7) facilitating the completion of the form from electronic devices. Employers must 1) train staff to collect and record I-9 information quickly in a newly designed I-9; 2) ensure reasonable accuracy of information; 3) track the expiration dates of work-authorizing documents; 4) complete re-verifications prior to their expiration; 5) do all of this while taking care not to ask for too many documents or too much information. This myriad of requirements under time, knowledge, and liability pressure creates a lot of room for mistakes and business disruptions. See Quick Guide: I-9 New Hire Chart , for some handy tools and key considerations to complete and audit the compilation of the current Form I-9.