Form I-9 Compliance for Small Businesses

Date: February 16, 2023

As a small business owner, it’s important to ensure that you’re in compliance with immigration laws and regulations to avoid costly penalties and potential litigation. One of the first and best ways to achieve compliance is by accurately completing and maintaining I-9 forms for all employees.

I-9 forms are documents used to verify an employee’s identity and eligibility to work in the United States. They were introduced as part of the Immigration Reform and Control Act of 1986, which requires employers to verify the identity and eligibility of their employees.

The I-9 form has three sections that must be completed:

Section 1: The employee must complete this section by providing their full legal name, date of birth, Social Security number, and immigration status (if applicable). The employee must also sign and date this section.

Section 2: The employer must complete this section within three days of the employee’s first day of work. The employer must physically examine the employee’s documents and record the document type, issuing authority, document number, and expiration date. The employer must also sign and date this section.

Section 3: The employer must complete this section if the employee’s work authorization has expired or if the employee has been rehired within three years of the original I-9 form.

Small business owners should secondly consider the following to further ensure their compliance federal immigration laws, including I-9 rules:

  • Training and informing your staff to ensure their competency in immigration compliance
  • Maintaining records and keeping I-9 forms on file for all employees and ensure they are stored securely. I-9 forms must be retained for either three years after the employee’s hire date or one year after the employee’s termination date, whichever is later.
  • Conduct periodic audits of your I-9 forms to ensure that they are completed accurately and up to date. You can read ICE’s Guidance for Employers Conducting Internal Employment Eligibility Verification Forms I-9 Audits here.
  • Consider utilizing E-Verify. E-Verify is a free online service that allows employers to verify an employee’s eligibility to work in the United States.

Remote Verification of I9 Forms due to COVID-19

In 2020, the Department of Homeland Security (DHS) implemented a proposed rule to allow for remote verification of I-9 forms. The U.S. citizenship and Immigration Services (USCIS) issued the following guidelines for remote verifications of I-9 forms that includes the following:

  • Employers should set up a video conference with the new hire and ensure that both parties have access to a reliable internet connection and a working camera.
  • The new hire must present their identification and work authorization documents to the employer during the video conference. The employer must be able to inspect the documents and confirm that they are genuine and belong to the new hire.
  • The employer should document the remote verification process, including the date of the video conference, the identity and work authorization documents presented by the new hire, and any other relevant details.
  • Employers must complete the Form I-9 process within three business days of the new hire’s start date, as usual. If the employer is unable to complete the process due to COVID-19, they should document the reasons for the delay and ensure that the process is completed as soon as possible.

The USCIS and ICE has recently extended this opportunity for remote I-9 verification to July 31, 2023. Employers should stay up to date with these rules as they are subject to change.

ICE Audits

Compliance with immigration laws and I-9 forms is crucial for small business owners to avoid legal issues and financial penalties, and failure to do so can open your business to a costly audit from The U.S. Immigration and Customs Enforcement (ICE).

During an ICE audit, ICE agents may request copies of I-9 forms and supporting documentation for all employees. They may also conduct on-site inspections to verify the information provided on the forms and to ensure that the employer is complying with U.S. immigration laws. If ICE finds that an employer has violated immigration laws, they may impose penalties and fines, require the employer to terminate the employment of unauthorized workers, or even initiate criminal proceedings.

ICE audits can be triggered by various factors, including tips from whistleblowers or other government agencies, previous immigration-related violations, random inspections, and more.

Employers should not hesitate to seek professional help and hire an immigration lawyer or consultant to help you understand and comply with immigration laws and regulations. If facing an ICE audit, it is definitely best to seek legal counsel.

For additional questions or information on I9 and immigration compliance, you can email [email protected].

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