By Rona M. Lum
June 3, 2010
Part I - Proper Completion of the I-9 Form
Earlier this year, U.S. Immigration and Customs Enforcement (ICE) announced that the agency is issuing Notices of Inspection (NOIs) to 180 businesses in five states - Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The notices alert business owners that ICE will be inspecting their hiring records to determine their compliance with employment eligibility verification laws and regulations.
In light of this recent announcement, and the likelihood that ICE’s inspections will be extended to businesses in other states, it is a good time to revisit your company’s I-9 program.
Why must employers verify employment authorization and identity of new employees?
Employment is usually the primary motivating factor for individuals to reside in the U.S. illegally. The purpose of the employment eligibility verification laws is to remove the incentive to illegally reside and work in the U.S. by requiring employers to hire only individuals who may legally work in this country.
The Immigration Reform and Control Act of 1986 (IRCA), INA Section 274A(a); 8 USC Section 1324a(a), instituted the requirement of the completion of Form I-9 by employers and employees.
I-9 Compliance Requirements
All persons hired after November 6, 1986 are required to complete a Form I-9. Employers are required to examine acceptable documents that establish identity and employment eligibility. Form I-9 should be completed and employees’ documents reviewed prior to or on the first day of employment. The employee must provide required document(s) and sign the Form I-9 within three business days of hire. Only individuals who are actually hired by the employer are required to complete and sign the Form I-9.
The Form I-9 and the “List of Acceptable Documents” should be presented to all new hires. The new hire must choose from the list which documents he or she wishes to present as proof of identity and employment eligibility. The employer should not specify which documents will be acceptable.
An employer is not required to complete a Form I-9 for:
1. Persons who were hired before November 7, 1986, who are continuing their employment with your company;
2. Independent contractors;
3. Persons providing labor to your company who are employed by a contractor providing contract services; and
4. Persons who are not physically working on U.S. soil.
The completed Form I-9 must be retained by the employer for three years after the date of hire or one year after the date employment ends, whichever is later in time. An employer can be sanctioned with civil penalties for knowingly hiring or continuing to employ an unauthorized alien or for failing to comply with the Form I-9 requirements.
Completing Form I-9 and Verifying Acceptable Documents
Initially, verify that your company is using the most recent version of Form I-9. The most recent version has a revision date of 08/07/09. Editions with a revision date of 02/02/09 are also acceptable.
Section 1 of Form I-9 entitled “Employee Information and Verification” is to be completed and signed by the employee. It is important that the employee complete the citizenship or immigration attestation in this section of the form.
Section 1 also contains a “Preparer and/ or Translator Certification” to be executed only in those instances when an employee is unable to complete the form on his/her own. The preparer/ translator is making the attestation as to the employee’s identity and eligibility to work in the U.S.
Section 2 of Form I-9 entitled “Employer Review and Verification” is to be completed and signed by the employer or authorized representative. The person signing the form is verifying that he or she has reviewed the employee’s document(s), that the document(s) presented is an acceptable document(s) for I-9 purposes, and that the signing party has made a good faith effort to determine if the document(s) presented appear to be genuine. Only unexpired documents are acceptable. Do not accept a document with an expired date. As the employer’s representative, do not sign the form if you have not personally reviewed the original document, or in the case of a birth certificate, a certified copy.
Section 3 of Form I-9 entitled “Updating and Reverification” is used to update the information contained in the form such as a name change due to marriage, divorce, etc. Also, in the case of an employee working pursuant to an employment visa with an expiration date (i.e. H-1B, TN-1, L1, etc.), the document establishing current employment eligibility should be recorded in this section of Form I-9. A new Form I-9 may be used, if necessary, to record updated information that the employer is unable to fit in Section 3.
Words of Caution
According to ICE, the most common deficiencies found during I-9 audits are:
1. No Form I-9 completed for an employee;
2. Employee citizenship or employment eligibility attestation is not completed in Section 1 of the form;
3. Employee’s signature is missing in Section 1 of the form;
4. Employer or its authorized representative has failed to complete Section 2 of the form verifying employment and identity documents (this oversight may be excused if photocopies of the employee’s documents are attached to the completed and signed Form I-9); and
5. Employer’s signature is missing in Section 2 of the form.
As you can see, these deficiencies can easily be overcome by having the I-9 process supervised and monitored by persons familiar with the requirements. It is highly recommended that, if possible, all I-9 matters be handled through an employer’s Human Resources department or by the individual responsible for overseeing HR issues for your company.
Rona M. Lum is the principal of the Law Offices of Rona M. Lum, P.C. and concentrates her practice in the area of corporate and employment-based immigration law. Ms. Lum may be contacted at [email protected].