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I-9 Checklist - Tips For Employer Compliance

by Angelo A. Paparelli

The Form I-9 (Employment Eligibility Verification) - issued by U.S. Citizenship and Immigration Services - must be maintained by all employers. Since November 1986, every new hire, whether the employee is a U.S. citizen or a foreign national, must complete section 1, attesting to the individual's identity and employment eligibility, on the first day of employment. Within the first three days of hire, employers must complete section 2 of the I-9 by examining original documents of identity and employment authorization, recording the starting date of employment, noting the document(s) number(s) on the form, and certifying by signing under penalty of perjury that the documents examined appear to be genuine and relate to the employee. Employers must also refrain, however, from engaging in prohibited acts of discrimination against new hires and applicants for employment, such as, by basing employment decisions on citizenship or national origin status, or insisting that employees provide only specific types of identity documents or work permits.

Recently, the federal government has refrained from pursuing civil penalties and instead has used the avenue of criminal law enforcement to prosecute employer violations of immigration laws requiring that businesses refrain from hiring or continuing to employ workers whom the employer knows or should know lack the right to work in the United States. For this reason, prudent employers should follow a set of steps to confirm that their compliance obligations under the immigration laws are fulfilled. This is especially important in the post-Enron era when Sarbanes-Oxley Act compliance and damage to reputation are of heightened concern. This checklist can therefore serve as a starting point for employer immigration compliance.

  • Current I-9s
    1. As long as no formal enforcement proceedings are pending or likely, employers should remove from their files and discard original I-9s no longer subject to the I-9 "retention rule" (I-9s may be destroyed after three years from date of hire or one year from date of termination, whichever is later)

    2. Employers should perform voluntary audits of all or a representative sample of retained I-9s to measure compliance practices;

    3. As a measure of good faith compliance and to mitigate potential fines, employers should correct I-9s with errors and missing information, keeping original I-9s and initialing changes with the date of correction.

    4. Establish a tickler system for the timely "reverification" of employment eligibility for foreign-national employees who have time-limited work permission.

    5. Employers should take prompt action if notified by the Social Security Administration that a discrepancy exists between employer-provided records on specific workers and the agency's own data (the so-called SSA "no-match letter"). An employer acts appropriately in this situation by checking the employer's records, providing the employee an opportunity to seek an official correction, or if unable to verify and reconcile the discrepancy, considering (on advice of counsel) whether termination of employment is required.
    6. If numerous no-match letters are received, employers should consider reverifying the entire workforce but take precautions to avoid unlawful immigration-related employment discrimination.
    7. Employers should decide whether to:
    • Copy or refrain from copying original documents of identity and employment eligibility. On the one hand, copying creates a paper trail making it easier for the employer and the government to review prior compliance actions, and for the employer to make corrections to I-9s, if required. On the other, maintaining added paperwork is burdensome and costly, and requires that employers act uniformly by copying all original documents reviewed on all employees for I-9 purposes and keeping the copies with the I-9s.
    • Maintain I-9s in paper, microfiche or electronic format. Employers should consider whether to maintain required records in paper format or use alternative technology. Immigration regulations now allow electronic storage and electronic signatures for I-9s. While using digital technology has its advantages in reducing paper storage costs, the regulations pose added requirements for assuring data integrity, facilitating audits and easing the government's investigative burden.
    • Participate in the new U.S. Citizenship & Immigration Enforcement ("ICE") Programs, the Electronic "Basic Pilot" Verification and/or "IMAGE". The Basic Pilot allows an employer to check the employment eligibility of foreign nationals (new hires only) through the government's immigration database. The signing of a Memorandum of Understanding is required. IMAGE is the ICE Mutual Agreement between Government and Employers, a plan for voluntary self-policing and the submission of annual immigration audits first by the government and then by qualified third-party entities. See:

  • Future Hires
    1. Set up a system for handling future I-9s.
    2. Complete Section 1 of the I-9 on the first day of work for all new hires.
    3. Complete the rest of the I-9 within three days of the first day of work.
    4. Consider pre-completing Employer's Business Name and Address in Section 2 and pre-fill Employer Authorized Representative's Name and Title if it is always the same person completing the Employer Certification.
    5. Do not accept copies of work or identity documents.
    6. Make sure all new hires complete I-9s in person before a company official (in order to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions.)

  • Company Practices

    1. Engage in regular training for employees handling I-9 completion.
    2. Establish an I-9 routine and follow it consistently for every employee.
    3. Create a system for tracking dates of hire and termination of employment in order to purge I-9s from current storage to minimize liability (assuming no actual or threatened government investigation exists or is likely).
    4. Consider establishing policies (in consultation with employment law counsel) for future compliance and ongoing voluntary audits.

About The Author

Angelo A. Paparelli, the Managing Partner of Paparelli & Partners LLP, practices in New York, NY and Irvine, CA. He has been named in 2005 and 2006 as the world's leading corporate immigration lawyer by The International Who'sWho of Business Lawyers, named as one of's "500 Leading Lawyers of America (2005)," and selected by Chambers Global as a first-tier business immigration lawyer. He writes a blog on America's dysfunctional immigration laws:

Paparelli & Partners LLP is a multi-jurisdictional law firm with offices in Irvine, California and New York, New York, dedicated to the practice of all areas of U.S. immigration law. The firm represents Fortune 500 businesses, privately-held and emerging-growth companies in a wide array of industries, entrepreneurs, investors, researchers, artists, athletes, universities and national law firms.

Worksite enforcement and I-9 compliance will be the focus of an all-day symposium sponsored by the Immigration Policy Center and the Federal Bar Association, Chicago Chapter. The symposium will be held at Northwestern University Law School in Chicago on Monday, November 20th from 8:30 am - 5:30 pm. A special AILA or FBA member discount is offered. Illinois CLE credit has been requested.

The symposium will feature nationally prominent speakers and focus on U.S. employers and their role in immigration compliance. The speakers, including Angelo A. Paparelli, will examine the difficulties in complying with the law and will discuss the penalties that can be assessed against an employer who discriminates against workers because they appear foreign. They will also address the risks in using subcontractors to avoid the reach of employer sanctions and examine the civil and criminal tools that the government is using against businesses that exploit unauthorized workers with substandard wages and working conditions. For more information, visit

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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