Practice Areas

I-9 COMPLIANCE: WHAT THE EMPLOYER AND EMPLOYEE NEED TO KNOW ABOUT FORM I-9

Employers are expected to help enforce the nation's immigration laws. The Government accomplishes this by having employers verify that every person they hire is a US citizen, permanent resident, or a foreign national with the appropriate work authorization in the US. The Government requires that the employer promptly and accurately fill out Form I-9 with every new employee.

EMPLOYEE'S OBLIGATION REGARDING FORM I-9:

The new employee need only complete Section 1 of Form I-9. He or she must do so no later than his or her first day of work. The employee must attest to the accuracy of the information provided. To meet employment requirements, all employees must complete Form I-9 by the date the job begins. The Employee must also present the employer with the identity documents necessary to complete Section 2 of Form I-9. The employee must present these documents within three business days of beginning the job or risk dismissal. In the event an employee has lost one of their documents, or it has been stolen or destroyed, a receipt is an acceptable replacement document. The receipt gives the employee 90 days to show the original.

EMPLOYER'S OBLIGATIONS REGARDING FORM I-9:

The employer must ensure that Form I-9 is completed. The employer is responsible for filling out Section 2, the identity verification section, within 3 days of hiring the employee. The employer must analyze the documentation presented by the employee and record it on Form I-9. The appropriate documentation establishes that the employee is authorized to work in the U.S. It also demonstrates that the employee who possesses the documents is in fact the person it was issued to.

Keep in mind that an employer is not permitted to decide which documents it will accept for employment eligibility verification. A good practice is for an employer to provide a copy of the "List of Acceptable Documents" to the employee on or before the first day of work. Instruct the employee that they must provide one document from List A or one document from List B and one document from List C on the first day of employment. As an employer, you may not use photocopies of identity or employment eligibility documents (With the exception of a certified photocopy of a birth certificate). The employer may make photocopies of the documentation provided and retain it with the completed I-9. However, if an employer retains copies for one individual, he or she must do so for all employees.

It is the employer's responsibility to examine the documents for authenticity. The employer must examine the documents and may only accept them if they reasonably appear to be genuine and from the employee who presents them. If an employer reasonably doubts the authenticity of a document, he or she should ask for other documentation from the list of acceptable documents. Employers should also be careful about requiring more documentation than the minimum necessary for Section 2. Such a policy may constitute unfair immigration-related discrimination. Remember, an employer cannot continue to employ an employee who cannot present documentation that meets Form I-9's requirements.

RECORD KEEPING REQUIREMENTS REGARDING FORM I-9:

The law requires that employers maintain records of I-9 forms for all employees. Contrary to popular belief, an employer may be liable for paperwork violations even if the employer has never hired an illegal immigrant. Incomplete I-9 forms can result in fines between $600 and $800 per form and missing forms can result in an additional fine of $1500 per form (though it can be as high as $10,000) for knowingly employing an ineligible person. Be aware that Immigrations and Customs Enforcement officials assume that persons without forms are employed illegally.

An employer must retain all I-9 forms for at least three years from the date of hire or one year after termination, whichever is later. An employer may destroy forms that are beyond this limit. In the event an employer re-hires an employee within three years of the date the form was first completed, the employer may reuse the original I-9. The employer need only complete Block B and the signature block on Section 3 of the original form.

Form I-9 seems like a simple paper to fill out. However, failure to follow the intricacies of the law can result in serious consequences. Employers must be careful to avoid problems relating to filling out the form and property retaining it. Furthermore, employers must also be careful to avoid potential discrimination in their I-9 process. Unfair immigration-related practices which are prohibited include the refusal to hire an individual because of national origin or citizenship status or refusing to accept documents that are legally acceptable. If an employer frequently hires foreign nationals and / or immigrant workers, conferring with a business immigration attorney is highly recommended.

The experienced and skilled attorneys at Shihab & Associates Co., LPA are fully prepared to help you address the business immigration needs and concerns of your company and its employees. From establishing a standard I-9 policy to creating a complete and meaningful audit system, Shihab & Associates can help along every step of the way to ensure that your company is in full compliance with federal regulations.