What if you conduct an I-9 audit and discover that you are missing some employees’ I-9 forms? You don’t know if they were accidentally purged, filed incorrectly, or never completed. Can you ask the affected employees to fill out another I-9? If so, do you ask them to backdate it or use the current date?
First of all, the fact that your company conducted an I-9 audit ensures your good faith compliance with federal immigration laws and may minimize civil fines for improper completion of I-9 forms. U.S. Immigration and Customs Enforcement officers can audit and fine employers $1,100 per I-9 for improperly completed forms.
Here’s a rundown of some of the key aspects of the I-9 process, courtesy of Dora V. Lane and Anthony L. Hall of Holland & Hart.
I-9 Form
The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify and document that all newly hired employees (not unpaid volunteers or contractors) are eligible to work in the United States. The I-9 form, also known as the Employment Eligibility Verification Form, is a one-page document provided by the federal government that employees and employers must complete.
The form itself has three parts.
Section 1 includes basic biographical information on the employee and also asks the employee to certify that he is a U.S. citizen, U.S. national, or permanent resident or is authorized to work under another status.
Section 2 is completed by the employer, which must verify the original documents presented by an employee to prove his identity and right to work. Section 2 must be completed within three business days of the date of hire.
Section 3 is reserved for employers that must periodically update the I-9 form if the worker isn’t authorized to work permanently in the United States or changes biographical details such as her maiden name.
I-9s, E-Verify, and More: 2012 Immigration Update for California Employers—webinar coming this Friday! Read more.
Covered Employees
Every employee hired after Nov. 6, 1986, must complete an I-9 form at the time he is hired. And as of April 3, 2009, employers must use the new mandatory Form I-9, which has been updated to meet U.S. Department of Homeland Security (DHS) regulations.
Workers who aren’t hired do not need to complete I-9 forms. Be careful, though—employers that selectively choose who will and will not complete an I-9 could face penalties under antidiscrimination rules.
Unpaid volunteers aren’t subject to I-9 rules. Neither are independent contractors, although you shouldn’t use independent contractors to circumvent immigration laws and employ undocumented workers. In addition, you should be aware that if you contract work to companies that you know use unauthorized workers, your company could be held liable under the IRCA.
Employees transferring to a different job within a company are not required to complete an I-9 form. Likewise, employees rehired by a company aren’t required to complete a new I-9 as long as they resume work within three years of completing the initial form. It’s also unnecessary for employees to complete a new I-9 after returning from paid or unpaid leave (e.g., for illness or a vacation), a temporary layoff, or a strike or labor dispute.
Timing
Employers are responsible for ensuring that I-9 forms are completed properly and in a timely manner. The employee must complete the first section of the I-9 form and provide the supporting documents within three days of the date of hire. Notably, I-9 forms may be completed, signed, and stored electronically.
If the supporting documents aren’t presented within three days of the date of hire, the employee must be removed from the payroll (although it is permissible to suspend the worker rather than terminating her).
It is generally not a good idea to have someone complete an I-9 before you make an offer of employment because the form elicits information about one’s national origin. If you subsequently decide not to hire the person, even for a good reason, the rejection could trigger a discrimination claim.
Documentation
The employee must present a document or a combination of documents that establishes both his identity and his legal authorization to work in the United States. Only unexpired documents are acceptable. A variety of documents are sufficient for I-9 purposes.
The acceptable documents are broken down into an “A” List, a “B” List, and a “C” List. The documents on List A can be used to establish both identity and employment eligibility. The documents on List B establish identity and must be used together with a document from List C to establish employment eligibility. You are not allowed to tell employees which documents from the pre-set list they must present.
Documents that may be used under List A to establish both identity and employment eligibility include:
- a U.S. passport
- a U.S. passport card
- an unexpired foreign passport with an I-551 stamp or with Form I-94 attached, which indicates an unexpired employment authorization
- a permanent resident card (often called a “green card”) or alien registration receipt card with photograph
- a temporary resident card
- an employment authorization card
- an employment authorization document issued by the DHS that includes a photograph (Form I-766)
Documents that may be used under List B to establish identity include:
- a driver’s license or ID card issued by a state or an outlying territory of the United States, provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color, and address
- a federal ID card, provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color, and address
- a school ID with a photograph
- a U.S. armed services identification card or draft record
- a U.S. Coast Guard merchant mariner card
- a Native American tribal document
- a driver’s license issued by a Canadian government authority
The following documents may be used to establish identity for individuals under the age of 18 only:
- a school record or report card
- a clinic, doctor, or hospital record
- a daycare or nursery school record
As mentioned above, employees who supply an item from List B must also supply a document from List C to establish employment eligibility. List C documents include:
- a U.S. Social Security card issued by the Social Security Administration (cards that specify “not valid for employment” are not acceptable)
- a birth certificate issued by the U.S. State Department (Form FS-545 or Form DS-1350) or an original or certified copy of a birth certificate from the United States or an outlying territory of the United States, bearing an official seal
- a Native American tribal document
- a U.S. citizen ID card (Form I-197)
- an ID card for the use of a resident citizen in the United States (Form I-179)
- an unexpired employment authorization card issued by the DHS (other than those included on List A)
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Recordkeeping
Your company must retain an I-9 form for every current employee. You must also retain an I-9 form for all former employees, regardless of whether they leave or are terminated, for three years after their hire date or one year after they leave—whichever is longer.
I-9 forms may be stored at the worksite to which they relate, company headquarters, or an off-site storage facility. Regardless of the location, it must be possible for the documents to be transmitted to the worksite within three days of an official request to produce the documents for inspection.
You need not retain copies of the supporting documents unless you choose to do so. However, maintaining supporting documentation could provide a good faith defense for showing that you had reason to believe an employee was authorized to work even if the paperwork wasn’t properly completed.
In addition, IRCA compliance officers may be suspicious of employers that don’t keep copies of documents. Regardless of which method your company chooses (keeping the documentation or discarding it), it’s important that you consistently apply your policy.
Reverification
I-9s are valid continuously for U.S. citizens unless a break of employment of more than a year occurs. If an employee isn’t a U.S. citizen or a lawful permanent resident, he is likely working under a status with a defined end date.
For those employees, you must note the expiration of their documents on the I-9 form and then pull their forms before the expiration date and reverify that their status has been extended. It’s therefore a good idea to establish a reliable system to remind yourself about reverification. Green cards and passports with expiration dates do not need to be reverified.
Tomorrow, the stiff penalties for I-9 noncompliance—plus the answer to the question we posed in the opening paragraph about missing I-9s.
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It’s easy to think strict adherence to the I-9 rules isn’t as important if you don’t have any immigrant employees, but Abercrombie and Fitch paid a huge fine for problems with its I-9 verification process, even though INS didn’t find any cases where the company knowingly hired unauthorized workers. Anyone can be subjected to an audit.
It’s easy to think strict adherence to the I-9 rules isn’t as important if you don’t have any immigrant employees, but Abercrombie and Fitch paid a huge fine for problems with its I-9 verification process, even though INS didn’t find any cases where the company knowingly hired unauthorized workers. Anyone can be subjected to an audit.