Avoiding Common Employer Pitfalls: Verifying Employment Eligibility via Form I-9

All U.S. employers are required to verify the identity and employment authorization of each individual hired for employment in the United States by completing and retaining Form I-9, Employment Eligibility Verification. Despite its routine use, I-9 compliance remains a frequent source of liability for employers, with U.S. Immigration and Customs Enforcement (ICE) audits and penalties continuing to rise. Below are common pitfalls and practical tips to help employers maintain compliance and reduce legal risk.

1. Improper Completion of the Form I-9

Pitfall: Employers and employees often make errors in completing Section 1 (employee’s responsibility), Section 2 (employer’s review and verification), or Supplement B (reverification and rehires).

Tip: Ensure that both employees and employers complete the appropriate sections fully and accurately, and within the required timeframes—Section 1 by the employee’s first day of work and Section 2 by the third business day after the start date.

2. Over-Documentation or Discrimination

Pitfall: Employers may ask for specific documents or more documents than required, which can lead to claims of discrimination or document abuse under the Immigration and Nationality Act’s anti-discrimination provisions.

Tip: Only request documents from the Lists of Acceptable Documents (A, or B and C), and let the employee choose which documents to present.

3. Failure to Timely Reverify Expired Work Authorization

Pitfall: Employers may forget to reverify employment authorization when temporary work permits expire, risking unauthorized employment.

Tip: Implement a tickler or calendar system to track document expiration dates and complete Supplement B when required. Note: U.S. citizens and lawful permanent residents with an unrestricted green card should not be reverified.

4. Missing or Incomplete I-9 Forms

Pitfall: Employers may fail to complete I-9s for all employees or may misplace completed forms.

Tip: Conduct internal audits periodically to ensure all I-9s are on file, properly completed, and retained according to the retention rules.

5. Improper Storage and Retention

Pitfall: Keeping I-9s in employee personnel files or failing to separate current and terminated employees’ forms can increase compliance risk and exposure during audits.

Tip: Store I-9s in a dedicated file—either electronic or physical—and keep separate files for current and former employees to streamline retention and destruction processes.

6. Lack of Training and Delegation Oversight

Pitfall: Employers often delegate I-9 responsibilities to HR or hiring managers without adequate training, leading to errors or non-compliance.

Tip: Provide regular training and clear protocols for staff responsible for I-9 completion and storage. If using an electronic I-9 system, ensure it complies with legal requirements. Also, if verifying remotely, make sure you meet the requirements.

7. Failure to Use the Current Version of the Form

Pitfall: Employers may unknowingly use outdated versions of Form I-9, which can result in penalties.

Tip: Always check www.uscis.gov/i-9 to ensure use of the most current version of the form.

Final Thoughts

ICE can impose penalties ranging from hundreds to thousands of dollars per violation, even for seemingly minor errors. Proactive compliance, training, and internal audits are critical. Employers should also consider legal review of their I-9 practices to ensure compliance and avoid liability.

For assistance with I-9 audits, compliance policies, or training, please reach out to me at tara.humma@rimonlaw.com or (215) 914-3388.

This summary is provided for informational purposes only and is not intended to constitute legal advice nor does it create an attorney-client relationship with Rimon, P.C. or its affiliates.

Tara Humma is a Litigation attorney who focuses her practice on labor and employment matters. Tara has over a decade of experience representing public and private employers of all sizes in states across the country. Tara represents clients in all phases of employment litigation, from initial pleadings, discovery, and motion practice to trial preparation and appeals. Her experience includes a broad range of litigation matters including, but not limited to, claims brought under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) (including accessibility cases), the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), breach of contract cases related to employment contracts and restrictive covenants and various other state and federal employment laws. Read more here.