I-9 Compliance
Workplace audits and I-9 inspections have become common. And the fines staggering. We recommend all employers review their I-9 files annually and have them inspected by an immigration attorney. Here are some answers to common questions employers have.
What is required to verify employment authorization?
The Form I-9 is the basic requirement to verify work authorization. The I-9 form is available here. The back of the form lists the acceptable documents that a new hire must produce to verify identity and employment eligibility.
Who must complete an I-9?
Employers must fill out and keep a Form I-9 for every person hired after November 5, 1986.
What about people who just apply for a job with my company?
No. You only need to complete an I-9 only for people you actually hire.
When should a new hire complete the I-9?
Ideally on the day the worker begins employment, but it is required to be completed within three business days of the date employment begins. If the necessary documents were lost, stolen or destroyed, a receipt for replacement documents must be provided within the three days. If an employee presents a receipt for a replacement document, then the actual document must be produced within 90 days from the date of employment.
Can I terminate an employee who fails to produce the required documents within three business days?
Yes. If this is your company’s policy then apply it uniformly, not just to someone who appears to not be a citizen.
What documents are legally acceptable for the Form I-9 purposes?
The employer must verify both identity and authorization to work in the United States. On the back of the I-9 Form there is a list of acceptable documents. Here is the list of acceptable I-9 documents.
- List A documents establish both identity and employment authorization.
- List B documents only establish identity.
- List C documents only establish employment authorization.
Can I refuse to hire a worker who is not a U.S. Citizen or green card holder but has another employment eligibility document?
An employer may not require specific documents, such as a driver’s license, passport, U.S. birth certificate or a green card. A new hire may show any of the documents listed on the I-9 form. If a worker provides a document in List A, or one acceptable document form list B and a document from list C that is all that is needed. The employer may not refuse to hire the worker because they want additional documentation.
If I believe a new hire is an (illegal) alien, can I ask the person to produce a Green Card when filling out the I-9 Form?
No, employers may not specify which document(s) are acceptable or require any specific document.
May I accept a social security card as proof of work authorization?
Yes, unless the Social Security Card does not state “NOT VALID FOR EMPLOYMENT” or “VALID FOR WORK ONLY WITH INS AUTHORIZATION.” Social Security Cards without either statements establishes employment eligibility.
If the new employee presents an identity document and an employment authorization card from USCIS, may I also ask for a green card to be sure they are legal?
No. The employer cannot specify a certain document and cannot require more than the minimum required to comply with the I-9 Form.
Am I responsible to guarantee the authenticity of documents presented to me?
The employer must examine the document(s). If the document(s) reasonably appear on their face to be genuine and match the person presenting them, you must accept them. Otherwise it may be classified as an unfair immigration-related employment practice. If the document does not appear to be genuine, you must not accept it. You may, but are not required to contact the local Immigration Service office.
Are photocopies okay?
No. Employees must present original documents. The only exception is a certified copy of a birth certificate.
What if my worker’s permanent residency card expires, do I need to reverify him/her?
No.
Can I accept expired documents such as an expired passport or driver’s license?
No. You may no longer accept an expired U.S. passport or driver’s license.
Can I refuse to hire a someone for a permanent position if their employment authorization card expires in 2 months?
No. You may not refuse to hire someone because their work authorization card will expire in the future. However, before hiring them you are allowed to ask the question “Will you now or in the future require sponsorship for an immigration-related employment benefit?”
Should I photocopy documents presented for I-9 purposes?
It does not matter as long as you have the same practice for ALL employees. On page 15 of the INS Employer Handbook “The law does not require you [an employer] to photocopy documents. However, if you wish to make photocopies, you should do so for all employees, and you should retain the photocopy with the I-9. Photocopies must not be used for any other purpose.”
How long should I retain employees’ I-9 forms?
Nonagricultural employers must retain an individual’s I-9 file for the latter of 3 years after employment begins or 1 year after the person’s employment is terminated. Thus, an employer must retain I-9s for all current employees for as long as they are employed and keep them for at least 1 year after they are terminated. If a terminated employee has been with the employer for less than 2 years, then they will need to keep the I-9 for longer than 1 year to reach the 3 year mark.
What penalties can an employer face if they do not keep the I-9 forms as required?
Employers may face penalties from $100 to $1,000 for each incorrect or missing I-9.
What other employer requirements are there besides completing the Form I-9?
Employers must take care to heed anti-discrimination rules, including citizenship status and national origin claims. The Office of Special Counsel has authorized the following 2 questions (be careful not to deviate).
- Are you legally authorized to work in the United States?
- Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?
If you have more questions or wish to have an immigration attorney examine your I-9s to ensure you are prepared when the ICE inspector comes, contact our immigration law firm. A small investment now to comply with the requirements can save your business thousands of dollars later.