A: No, attaching photocopies of employees’ documentation, but leaving sections of the form itself incomplete, is not sufficient for I-9 purposes. One small employer who took that approach recently found itself with a bill for $173,500 in penalties from Immigration and Customs Enforcement (ICE). The employer had photocopied each employee’s documentation and attached it to the Form I-9, but had left Section 1 or 2 incomplete on numerous employees’ forms. When it was audited and fined by ICE for these violations, the employer argued that it had substantially complied with its obligations by at least obtaining the documentation from employees and keeping photocopies of it. Nice try, said the U.S. Ninth Circuit Court of Appeals, siding with ICE in concluding that the employer violated the law by not ensuring that Sections 1 and 2 of each employee’s Form I-9 were fully completed (Ketchikan Drywall Services, Inc. v. ICE, 9th Cir, Aug. 2013).
Tips: Remember that it is optional for you to keep photocopies of employees’ I-9 documentation, but some employers have found that it has been helpful during an audit (whether internal or by ICE) to have photocopies. Keeping copies may be optional, but it is mandatory that you have the employee complete Section 1 of the Form I-9 and you complete Section 2 after reviewing the employee’s documentation. Also, the U.S. Department of Justice Office of Special Counsel (OSC) recently issued a Technical Assistance Letter frowning on the practice of employers pre-populating Section 1 of the Form I-9 with the employee’s information (presumably obtained from an employment application). According to the OSC, this increases the likelihood of including inaccurate information in Section 1. For more information, see our Legal Guide, “Form I-9: Basic Obligations of Employment Eligibility Verification” (2813) or contact us to learn more about ongoing counsel on this issue. With Vigilant you'll pay a flat monthly fee for unlimited help from employment attorneys.
Q: We recently self-audited our I-9 forms and discovered that we have photocopies of documentation for all employees, but on many forms Section 1 or 2 was never completed. Do we have to go back and transfer the information from the copies to the Form I-9? Isn’t it enough that the information is there in the copy of the employee’s documentation?
