What Employers Need to Know About the I-9

With nearly 700 arrests, the chicken plant raids in early August in Mississippi caught everyone’s attention, generating days of headlines nationally. 

What got far less attention were the follow-up reports, based on court documents, revealing that many of the plants were “willfully and unlawfully” employing people without proper work documentation authorizing them to hold jobs in the U.S. 

It was the largest illegal-alien raid in a decade, signaling an escalation in the Trump administration’s crackdown on illegal immigration. 

In that light, we thought it would be good to take a deeper look at employers’ obligations to comply with immigration laws and, more specifically, the I-9 form

Assuming you’ve had little experience with the I-9, the first thing to know is that the government makes the form available online, complete with instructions to how to fill it out. 

You must complete an I-9 at the beginning of employment for every employee you hire, not just those who you think might not be citizens. 

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

You also 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 violating the law you must do so for all employees regardless of actual or perceived national origin or citizenship status. 

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. 

While Immigration and Customs Enforcement may elect to conduct a raid on your workplace, it’s more common for it to simply do an audit. 

The good news in that regard is that, by law, an employer must have at least three business days to comply and produce its I-9s. 

What should you be doing during those three business days? 

  • Separating I-9s from their personnel files. 
  • Reviewing all I-9s for complete compliance. 
  • Fixing any errors you find, including amending incorrect or incomplete forms, and completing missing forms. 
  • Re-verify any employees whose temporary work authorization expired. 

Then, if possible, arrange to have the I-9 inspection take place at the ICE office. This way, you keep ICE agents out of your business. If ICE insists on the inspection occurring at your business, it’s best to segregate them in a conference room to (hopefully) limit any interactions with your employees. 

Regardless of where the inspection takes place, the three-day rule provides you valuable time to prepare.  

Oh, and one last thing, if you haven’t yet, this might be a good time to verify the authenticity of every I-9 in your files for current employees.