Questions and Answers on Preparing for an I-9 Audit

by Ann Cun

Last Thursday, November 7, LawLogix conducted a webinar “Key Tactics and Strategies in Preparing for an I-9 Audit.” Our guest speakers included:

  • Amy Peck, Partner at Jackson Lewis LLP in Omaha, Nebraska
  • Elizabeth Shelly, Global Human Resource, T. Rowe Price

Now that the government has resumed operations after the shutdown, what should employers expect from an I-9 compliance standpoint?  Is it business as usual?  Our attendees agreed that the most pressing issue that kept them up at night was the inevitable I-9 audit by the government.   Today’s article summarizes some of the most popular questions we couldn’t address during the webinar due to the time constraints:

Emerging Technologies

Q: Can I use technology to verify the documents, such as Skype or Facetime, to verify a new hire’s documents in Section 2?

A: The regulations require employers to physical inspect (see and touch) the documents presented for Section 2 during the verification process.  Currently, teleconferencing technology is not permitted during the Section 2 verification process.  (See page 5 of the M-274, Handbook for Employers, Rev 4/30/2013.)

Q: Can I use mobile technology (smart phone or tablet) to scan/photograph support documentation for Section 2 (like List A or B/C documents) for a upload, at a later time, onto my organization’s online files?

A: Considering that Form I-9 identity and work authorization documents contain a ton of personally identifiable information (PII), loading this information onto an employee’s mobile device will raise a host of privacy issues.  Consult with your organization’s chief privacy officer to implement a best practice policy that protects employee PII and reduces liabilities from potential breaches.

Section 1 Items

Q: Will you please clarify the email and phone options in Section 1?

A: The email and phone fields on Section 1 of the Form I-9 are optional.  If your organization is enrolled in E-Verify, and the employee chooses to complete the email field, then the employer must input this information into the E-Verify system.  See page 1 of the instructions to the Form I-9.

Q: Can you clarify when we can complete Section 1 and Section 2 of the Form I-9?

A: Section 1 can be completed anytime after the employee accepts the job offer, up until the end of the first day of work for pay.  Section 2 can be completed anytime after the employee accepts the job offer up until the third business day the employee starts work for pay.  To learn more, visit USCIS’ I-9 Central for greater details.

Section 2 Issues on the Form I-9

Q: Can anybody act as an employer representative in Section 2 to “certify” that section?

A: Yes.  However, the employer is ultimately responsible for the actions of the whomever “certified” Section 2.

Q: Where can I find the “issuing authority” on the documents presented during Section 2 verification?

A: The document will typically list the agency issuing that document. For example, a U.S. passport may be issued by the “U.S. Department of State” or by the local regional passport agency; a state driver’s license may be issued by the state DMV; a social security card may be issued by different agencies depending on the year it was issued. Carefully inspect the document for the issuing authority.

Q: Can we use the "Who is Issued This Document?" chart on the USCIS website to determine if a document pertains to an employee?

A: Yes.  However, keep in mind that the chart was last update d on June 29, 2011 (last accessed online on November 11, 2013).

Q: How should our organization manage home-based employees or remote employees?

A: Although there is no right or wrong way when it comes to the Form I-9, there are best practices.  We devoted an entire article here about it.

Q: How can I manage soon to be expired documents that need reverification?

A: The best way is to implement a system that tracks expiration dates and sends the person in charge of managing I-9 issues a tickler well in advanced.  Check out our Guardian I-9 and E-Verify software to see how we can help.

Retention Issues

Q: Can we keep our I-9 Forms with the employee’s personnel file?

A: That depends on how your state categorizes what belongs in a personnel file.  USCIS does not express a preference for where employers store their Forms I-9 so long as the forms are easily accessible during a government I-9 audit and protect employee PII.

Developing Best Practices

Q: Our other business process (credentialing for healthcare providers, payroll, etc.) requires a copy of the social security card.  Can we combine that process with the I-9 process?

A: Many employers have developed a best practice to segregate the Form I-9 process from all other functions because of the compliance nature of the Form I-9.

Q: We have multiple locations where some offices are enrolled in E-Verify and some are not.  Would it be a good practice to standardize all of our required fields for the locations?

A: Standardizing the Form I-9 process across all satellite offices to be consistent with headquarters may have its advantages.  Be sure to consult with your I-9 expert, either internally, or with an experienced immigration attorney, to ensure that your standardized process is consistent with the I-9 and E-Verify regulations.


Have more questions about government Form I-9 audits?  Subscribe to our blog to get the latest practice updates!

Originally published by LawLogix Group Inc Reprinted with permission.

About The Author

Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.