AVOIDING COMMON PROBLEMS IN
PREPARING I-9 FORMS
Under the Immigration Reform & Control Act
of 1986 (IRCA), an employer can be fined for hiring or continuing
to employ an individual, if the employer knows the individual
is an alien who is not authorized to work in the United States.
An employer can also be fined for hiring any individual, citizen
or alien, without verifying the individual's right to work
in the United States by completing the Employer Eligibility
Verification Form (Form I-9).
Properly completing the I-9 form is important
since the Immigration and Naturalization Service may fine
employers up to $1,000 for each improperly completed I-9 form
even if all the company's workers are American citizens.
The I-9 form has three sections. The first
is for the employee. The second is for the em-ployer. The
third is for the employer to up-date the employee's work authorization
when necessary. Since the I-9 form is completed under penalty
of perjury, a federal crime, all of the information must be
accurate.
Here are some common errors
which employers should be aware
of in preparing the I-9 form:
I-9 RETENTION AND INSPECTION
I-9 forms must be retained for three years
after hire or one year after termination, whichever is later.
The employer and the recruiter/referrer must make the I-9
forms available for inspection by the Immigration & Naturalization
Service (INS) or by the Department of Labor.
1. It is the employer's
job to verify that every item on the first part of the form
is completed by the employee on the first day of work. The
em-ployee must sign the form in the signature box and date
it. The employee must check one of the three boxes about his/her
status in the United States.
2. Employers may
not say which of the acceptable documents the employee must
present. The choice is the employee's. The employer must list
the issuing authority, the document number, or the expiration
dates of documents reviewed in Section 2 of the I-9 form.
3. The most common
identification presented to complete this section is a driver's
license. Employers should be sure to identify the state issuing
the license on the I-9 form. While a Canadian license is acceptable,
all other foreign licenses are not. An expired driver's license
may be used. Employers should be sure to include the date
on which the license or other document expires.
4. Hospital-issued
birth certificates and expired foreign passports cannot be
used.
5. If a Social
Security card is presented as proof of employment eligibility,
the number must be noted. A receipt from the Social Security
office with a temporary number is acceptable for 90 days.
It is a serious crime to create or knowingly accept a false
Social Security number.
6. The law does
not require employers to photocopy the documents reviewed.
If photocopies are made, they must be attached to the I-9
form. Copying the documents does not relieve employers of
the obligation of meticulously completing the information
requested on the I-9 form. Questions concerning the appropriateness
of documentation presented by the employee should be referred
to an Immigration Attorney.
7. The date requested
here is the first day of work.
8. The employer's
authorized representative who looked at the original documents
must sign the employer's certification and print or type his/her
name. Employers should not sign unless they have personally
looked at the documents.
9. Include the
name and address of the business in the employer's certification
block. A pre-printed form or a rubber stamp may speed up the
process.
10. The I-9 form
must be dated on the day it is completed. The date is important
because the employer's part of the I-9 form must be com-pleted,
at the latest, within three days of the date when the employee
actually begins working.
11. Knowing when
reverification is necessary can be complicated. Certainly,
it should occur at the expiration of any temporary work authorization
(such as an H-1B visa). Work authorization must be reverified
in Section 3.
AVOIDING DISCRIMINATION
Employers are prohibited from discrimi-nating
against employees based on country of origin or citizenship.
An employer cannot:
» specify which verification documents
an employee must show
» require more documents than the law says are necessary
» routinely call the INS to verify a potential employee's
work authorization
The law requires employers to accept any List
A document or a combination of documents from List B and C
which appear to be genuine.
This portion of IRCA is enforced by the independent
Office of Special Counsel (OSC) in the Department of Justice.
Employers should be careful not to violate
the anti-discrimination provisions of IRCA in their attempts
to ensure full compliance with the employer sanctions laws.
The INS Employ-er Handbook explains what actions constitute
unfair hiring practices that may result in the imposition
of civil fines and other actions by the Office of Special
Counsel.
Allen E. Kaye and associates
will counsel employers, train staff and review I-9 files to
monitor your company's compliance.
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