The Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement (ICE), has made work site enforcement one of its top priorities. The agency reports that it is achieving great success in investigating and prosecuting employers who have hired illegal aliens. ICE has filed felony charges as well as commenced enforcement actions under the Immigration Reform and Control Act (IRCA) against those who harbor, transport and employ illegal aliens. And it isn't just border states that are under scrutiny. In August 2006, a Whitewater business owner and 25 of his employees who were alleged to be illegal immigrants were arrested.

There are no plans to relieve employers of their current obligations under the IRCA, including obligations with respect to the Employment Eligibility Verification - I-9 Form. The IRCA, which has been in effect since 1986, prohibits the employment of "unauthorized aliens," penalizes employers who hire them, and requires all employers to verify that each employee hired is authorized to work in the United States. Employers are required to document the employer's verification on the I-9 Form.

For most employers, completing and retaining I-9 forms on all new hires has long become a routine part of the hiring process. Some employers have delegated responsibility for I-9 form completion to lower level staff who may not have been instructed and know little about I-9 compliance requirements. Since the completed I-9 forms are not routinely reviewed or audited by a federal agency, it can be easy for the verification and form completion process to become careless, slipshod or even ignored.

The I-9 form was reissued in May 2005 to reflect that the Department of Homeland Security is now the agency in charge of compliance; however, it is the same basic form which has been around since last updated in 1991. Like the Handbook for Employers, it is outdated. It is uncertain when the form will be revised to conform to current requirements. Effective September 30, 1997, the list of acceptable documents to establish identity and employment eligibility was reduced, which means that some of the documents listed on the back of the I-9 form are no longer accepted or issued. Employer Information Bulletin 102 lists the documents that employers may currently accept.

Some of the more important I-9 requirements and tips on avoiding common errors include:

• An I-9 form is required for every employee hired on or after November 6, 1986.

If you find forms are missing or were never completed for one or more employees or if in reviewing forms you find inadvertent errors were made, complete a new form. New forms should not be backdated, and if a new form is needed to correct a mistake, keep the original and the new form.

• The form must be signed by the employee, the employer or authorized representative and a preparer and/or translator if one is used. Note that the employer "attests under penalty of perjury...."

Do not sign an I-9 form if you did not examine the documents identified on the form. Employers sometimes have difficulty completing the I-9 form for field or traveling employees within three days of hire. It is not acceptable for an employer to sign a form if the employee completed a portion of the form and sends it to the office without an authorized employer representative examining documents presented by the employee.

• Examine the documents presented by the employee to make sure that the document appears genuine and relates to the employee who you hired.

Employers are not required to be document experts, but will be held to a reasonableness standard. Employers are not required to make a photocopy of the documents presented. Some say that it is not a good idea to do so, because the employer may be creating evidence that they accepted fraudulent documents. That risk does not seem to be substantial, because in most cases the quality of forged documents is quite remarkable and not readily apparent to a diligent employer. The advantage to making and retaining a photocopy is that the employer has evidence that it did actually review the listed documents and that they appear to be genuine.

• Employers are required to retain I-9 forms for three years after the employee's date of hire or one year after the employee's termination, whichever is later.

These forms must be produced for authorized officials of the Bureau of Immigration and Customs Enforcement, Department of Labor or the Justice Department, upon three days' notice. Employers are not prohibited from filing the I-9 form in an employee's personnel file, but there are several disadvantages to doing so. If an employer is required to produce its I-9 forms for a federal review or audit, the employer would have to go through each current employee's personnel file and the personnel files of employees who were terminated within the retention period to pull the forms. It is not a good idea to allow a federal compliance officer access to personnel files if there is no requirement for an employer to do so. In addition, the I-9 form and copies of documents attached divulge the employee's citizenship or immigration status and perhaps other information on the employee's protected status. Supervisors or managers reviewing the personnel file, perhaps to consider the employee for a promotion, would have access to irrelevant information and information that might give rise to discrimination claims.

• Employers are required to reverify an employee's employment eligibility if and when the employment authorization listed on the form expires.

Establishing a "tickler" system to provide a reminder of expiring employee work authorizations well in advance of the expiration date can prove helpful for the employee and the employer. Since the time period necessary for the employee to renew their authorization can be lengthy and delays are not uncommon, starting early can be important for the employee's continued employment. Receipts showing the employee applied for an extension or renewal of his/her work authorization are not acceptable, and the I-9 verification must be completed no later than the date the employment authorization expires.