I-9 Compliance Issues

Introduction

If you are considering employing one or more persons for your business, you are required to comply with the USCIS requirements for verifying the identity and employment eligibility of each individual you hire. it is essential you complete the Form I-9, Employment Eligibility Verification Form, for each new employee. Employers who don’t adhere to the I-9 requirements can anticipate civil and or criminal penalties if audited by U.S. Immigration & Customs Enforcement (ICE).

Purpose of Form I-9

The Form I-9, employment eligibility verification, is used to establish the employment eligibility of persons being considered for employment. It essentially requires the employer to hire only those persons who are eligible to legally work in the U.S.

The law also obliges U.S. employers not to discriminate against individuals on the basis of national origin or citizenship, or require different documents from different individuals.

Note: Independent contractors are not subject to the I-9 requirement, but if you know an independent contractor lacks work authorization, retaining the contractor will constitute a violation of Immigration Reform and Control Act (IRCA).

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Who Requires Form I-9

All employees, citizens and non-citizens, hired after November 6, 1986, must complete the Form I-9 at the time of hire, which is the actual beginning of employment. The employer is responsible for ensuring that section one is completed properly and in time.

You (U.S. employer) must have a Form I-9 in your files for each new employee, unless:

• The employee was hired before November 7, 1986, and has been continuously employed by you
• The employee is providing domestic services in your private household, and the services are sporadic, irregular or intermittent
• The employee is providing services as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom you do not set work hours or provide necessary tools to do the job, or whom you don’t have authority to hire and fire)
• The employee is providing services under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes for example, a temporary employment agency)

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Completing Form I-9

The Form I-9 must be completed for each employee within three days of the start of employment. If the duration of employment is less than three days, Form I-9 must be completed at the time employment begins.

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Employee’s Responsibility Regarding Form I-9

As the employer, you have some very important responsibilities:

• You are responsible for ensuring that the entire Form I-9 is completed no later than the close of business on the third day of when the employee began working.
• You can only provide the official list of acceptable documents for establishing identity and work eligibility to the employee. You are STRICTLY PROHIBITED from requesting a certain type of document or listing which documents to bring.
• You must examine the documents that the employee brings and accept them if they reasonably appear to be genuine and pertaining to the employee presenting them. You may refuse to accept a document if the documentation presented by the employee does not appear to be genuine and ask for other documentation from the list of acceptable documents that meets the requirements.
• You must bear in mind that requesting more than the minimum types of documents necessary to meet the requirement may constitute unfair employment practice relating to immigration.

You should not continue to employ an employee who cannot present the required necessary documentation.

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Anti Discrimination Requirements

Immigration regulations prohibit discrimination in hiring and discharging based on national origin or citizenship status.

• An employer cannot demand more or different documents than an employee chooses to present, provided that the documents presented meet the I-9 requirements
• Protected persons must be considered for employment only on the basis of qualifications, experience, and personal merit. Accordingly, the I-9 process may not be used to pre-screen employees for hiring

Note: Anti-discrimination provisions are enforceable against employers of four or more employees found to have discriminated against any person, other than an unauthorized foreign national, in hiring, discharging, recruiting or referring for a fee because of that person’s national origin or, in the case of citizens or protected individuals, citizenship status.

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Retaining I-9 Forms

Unlike tax Forms, for example, Forms I-9 are not filed with the U.S. government. You must maintain I-9 records in your own files for three years after the date of hire or one year after the date the employee’s employment is terminated, whichever is later.

This means that Form I-9 needs to be retained for all current employees, as well as terminated employees whose records remain within the retention period.

Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within three days of an official request for production of the documents for inspection

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Missing I-9 Forms

If you discover that an I-9 Form is not on file for an employee, you must request the employee to complete an I-9 Form immediately and submit documentation as required in section twoo.

The new Form should be dated when completed, and never pre-dated. When an employee cannot provide acceptable documentation and you become aware at that time of the individual’s ineligibility to work, you may be subject to penalties for ‘knowingly’ continuing to employ a worker under such circumstancess.

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Form I-9 Requirements of New Owners of Existing Businesses

If you are a new owner of a business, you may keep the acquired employer’s I-9 records rather than complete new Forms I-9 on employees who were also employees of the acquired employer. However, since you would be responsible for any errors, omissions or deficiencies in the acquired records, you may choose to protect yourselves by having a new Form I-9 completed for each acquired non-exempt employee and attached to that employee’s original Form I-9.

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Can An Employee Who Fails To Produce The Required Document(s) Within Three (3) Business Days Be Fired?

Yes, you can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three (3) business days of the date employment begins.

However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.

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Green Card Issues

The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted legal permanent residence in the U.S. Once granted, this status is permanent. However, the document that an alien carries as proof of this status may expire. Green Cards are generally valid for 2 years (for Conditional Residents) or 10 years (for all other LPR’s).

When these cards expire, the LPR cardholders must obtain new cards. An expired card cannot be used to satisfy Form I-9 requirements for new employment. However, expiration dates do not affect current employment since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents). 

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Official Inspection of I-9 Records

Upon request, all I-9 Forms subject to the retention requirement must be made available in their original form or as electronic records to an authorized official of ICE, Department of Labor, and/or the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices. The official will generally give employers at least three days advance notice before the inspection. Original documents (as opposed to photocopies) may be requested.

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E-Verify

E-Verify is an automated system that was developed by USCIS which allows electronic verification of new employees. The E-Verify system can verify a person’s immigration status and authorization to work in the U.S.

Enrolling in and using E-Verify is the alternative to using the paper Form I-9. If you enroll and use E-Verify, you are not required to also prepare and retain Form I-9’s.

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Conclusion

Ensuring I-9 Compliance is a key responsibility of ALL U.S. employers. VisaPro attorneys can assist clients in achieving and maintaining I-9 Compliance by auditing past and current records, advising on new-hire procedures and conducting regular training sessions. Click here to learn more about our I-9 services.

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