Recent immigration activity underscores the importance of diligent I-9 practices. In Nebraska, one of the fastest-growing meatpacking companies in the Midwest saw production collapse by nearly 70 percent after federal agents raided the plant and detained more than 100 workers accused of using false identification. (New York Times). In South Dakota, a federal audit at a dairy farm led to the loss of 38 long-time employees after immigration paperwork problems were uncovered. (South Dakota Searchlight). With so many workers gone, the remaining staff have struggled to keep up with demand while the farm continues to face challenges finding local applicants before turning to visa workers. And in Sioux Falls, Operation Prairie Thunder has combined state and federal law enforcement efforts, resulting in immigration‑related encounters during saturation patrols. (DRG News). Because these patrols extend to roadways and freight corridors, the operation may also affect the trucking and delivery industry. Together, these developments show that enforcement is active and expanding across the Midwest. For employers, the lesson is clear: robust I-9 compliance is not optional; it is essential to protect your workforce and your business.
Every employer in the United States is required to ensure each new hire completes Form I-9, regardless of the employee’s citizenship status. The process begins with the employee, who must fill out Section 1 on or before the employee’s first day of work. Within three business days of the employee’s start date, the employer must complete Section 2 after reviewing the employee’s original documents to confirm identity and work authorization. This could be a single document, such as a U.S. passport or permanent resident card, or a combination like a driver’s license paired with a Social Security card. The employer generally examines the documents in person, ensuring they appear reasonably genuine and relate to the individual presenting them. Employers in good standing with E‑Verify may instead use a DHS‑authorized remote examination procedure at their E‑Verify hiring sites. If the employer chooses to offer the alternative procedure at an E-Verify hiring site, the employer must do so consistently for all employees at that site. Employers may choose to apply the alternative procedure only for remote hires while continuing physical examination for onsite or hybrid employees, provided this distinction is not made for discriminatory reasons. Whether using physical or remote examination, it is the employee’s choice which documents to present from the lists of acceptable documents provided with Form I‑9. Employers may not demand specific documents or reject valid ones, as doing so can constitute document abuse under federal law. Employers must keep each I‑9 for three years after the date of hire or one year after employment ends, whichever is later.
The Supplement B of Form I-9 (formerly Section 3) is used for reverification and rehires. Employers must complete this section no later than the date an employee’s work authorization expires to confirm continued eligibility to work. It is also used if an employee is rehired within three years of the date the original Form I-9 was completed, or if the employee has a legal name change. Employers should never reverify U.S. citizens or lawful permanent residents who presented a Permanent Resident Card (Form I-551), but they must reverify employees with temporary work authorization.
If an error is discovered on a Form I-9, the employer should correct it promptly and carefully. Minor mistakes (such as typos, missing initials, or incorrect dates) can be corrected directly on the form. The proper method is to draw a single line through the inaccurate information, enter the correct data, and then initial and date the change. Employers should never use correction fluid or erase the original entry. If the error is in Section 1, the employee should make and initial the correction; if the error is in Section 2 or the Supplement B, the employer should do so. Major mistakes (such as using the wrong version of the form or completing sections incorrectly) may require completing a new Form I-9. In these cases, the new form should be attached to the original, along with a short note explaining the reason for the correction.
To reduce risk, employers should adopt best practices in managing Form I‑9. Conducting regular internal audits helps identify and correct errors before they become issues in an external review. I‑9s should be maintained separately from personnel files to allow for easier inspection and to protect sensitive employee information. While E‑Verify can be useful, it does not replace the legal requirement to complete Form I‑9 for every new hire. HR staff should be trained to properly examine documents for authenticity while respecting the employee’s right to choose which acceptable documents to present. Together, these practices strengthen compliance programs and safeguard business operations in the face of heightened enforcement activity.
With immigration enforcement intensifying in the Midwest, employers must treat I-9 compliance as a frontline defense. If your organization has questions about compliance obligations or is considering changes to existing practices, we encourage you to seek legal guidance. Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is ready to assist clients with employment law matters, including I‑9 compliance.
Contact a Davenport Evans lawyer at 605-336-2880, [email protected], or find a specific attorney on our Our Lawyers page.
Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the state’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.