Although most employers have heard of the I-9 form to be used for employee verification/work authorization when a new employee is hired, many are unaware of the potential complexities involved with this form and record retention requirements. Many employers are also not aware that United States Citizenship and Immigration Services [formerly known as INS] (USCIS) has recently made changes to the I-9 form and just issued a new I-9 form effective June 16, 2008. As enforcement efforts are becoming more common, it is more important than ever to understand and meet your obligations with regard to the employment authorizations.
THE NEW FORM
In a nutshell, employers are required to have all new employees, including U.S. citizens, complete Section 1 of the USCIS Form I-9 (and it must be the form dated at the bottom of the page: June 16, 2008, or later), and present document(s) establishing both their identity and their employment eligibility. The new form is available on the USCIS' website at http://www.uscis.gov/files/form/I-9.pdf. This newest version of the form is identical to the form issued in 2007, except for the revision and expiration dates.
THE I-9 PROCESS FOR NEW HIRE
Employers must permit new hires to present any document or combination of documents acceptable by law. An employer cannot require a new hire to produce a document not on the lists established by the USCIS (attached to the I-9 form), nor prefer one document over another. Employees must present original documents (although, a certified copy of a birth certificate is also acceptable) and employers must accept documents presented by employees if they are on one of the lists of acceptable documents on the I-9 form and appear to be genuine on their face and relate to the person. Although employers are not required to be document experts, if a document does not meet this authenticity standard, the employer should reject it and ask the employee to produce other acceptable I-9 documentation. Occasionally, an employer may discover that an employee presented documents that are counterfeit or belong to someone other than the employee. In such a case, if the employer wants to continue to employ that person, the employer should reverify work authorization by allowing the employee to present acceptable authorization and then complete a new I-9. An employer who knowingly continues to employ an unauthorized worker may be subject to serious penalties.
WHEN TO DO THE PAPERWORK
The I-9 form should be completed at the time of hire, but should only be completed for people for whom the commitment to hire has been made. In other words, the employer may not require job applicants to complete an I-9 as part of the application process. Under the rules governing the I-9, the employer should examine the documentation presented by the new employee and complete Section 2 of the I-9 form within three business days of the date of hire, or on the first day of hire if the job will last less than three days. It is important to remember that the employer will be held liable if the employee fails to complete the I-9 form.
RECORD RETENTION
Employers are required to retain the I-9 form and all attachments for all current employees. Further, with regard to former employees, the I-9 must be retained for a period of three years from the date of employment or for one year after the employee terminates employment, whichever is later. Although employers are not required to keep copies of I-9 verification support documents, any copies that are made must be retained and attached to the I-9 form. If an employer keeps copies of support documents, it should consistently do so for all employees.
THE SUPPORT DOCUMENTS
The lists of acceptable documents establishing identity and employment concurrently (List A), identity only (List B), and employment eligibility only (List C), are listed on the back of the I-9 form. An employee must present either one document from List A, or one document from List B and one document from List C. Most of the changes made to the I-9 form in 2007 have to do with what documents are acceptable, so it is especially important for employers to become familiar with the list on the new form.
SPECIAL CIRCUMSTANCES
Although these general rules will govern the completion of the I-9 for many employees, employers are often faced with "special" situations, involving, for example, a re-hired employee, an employee whose work authorization is about to expire, or an employee who has lost his or her documents. USCIS has issued a Handbook for Employers that will assist with many of these issues. It can be found at http://www.uscis.gov/files/form/I-9.pdf. This newest version of the form is identical to the form issued in 2007, except for the revision and expiration dates.
INTERNAL COMPLIANCE AUDITS RECOMMENDED
One of the most important things employers can do to ensure that they are complying with their I-9 obligations is to regularly audit their I-9 forms to ensure that they are properly retaining the forms they need and that each form has been correctly completed.
THE STAKES FOR NONCOMPLIANCE ARE HIGH
Enforcement efforts have increased in this area over the last few years. In fact, the U.S. Immigration and Customs Enforcement (ICE) has recently begun serving subpoenas which require employers suspected of violating the law to produce I-9 forms for all their current employees and all their former employees who were terminated in the preceding year.
The cost of employer noncompliance can be significant. By way of example, the Department of Homeland Security (DHS) recently announced that civil fines against employers in violation of federal immigration laws have increased by about 25 percent. Moreover, those penalties are assessed on a per-alien basis. In other words, if it is found that an employer knowingly employed or continued to employ ten unauthorized workers, ten separate fines may be charged to the employer.
As a result of these inspections and enforcement actions, businesses have been disrupted, employees have been deported and employers have been assessed civil penalties for record keeping and related violations.
Don't let this happen to you. Review your files. Get them in order. When in doubt, call your lawyer or a lawyer who you know has handled matters such as this. We have handled many I-9 audits and related matters and we are happy to help.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
|
