For employers, immigration isn’t just a controversial news topic.
The laws and policies surrounding this issue have a real impact on their business. All employers, including small businesses, are required to complete and retain a Form I-9 Employment Eligibility Verification for every person they hire to work inside the U.S. for pay or any other type of compensation. Failure to comply could result in severe penalties.
What Is the Form I-9?
The I-9 form is a federal employment verification form that every employer must have on file for each of their employees. Federal immigration law prohibits employers from hiring and employing, or continuing to employ, anyone the employer knows is not authorized for employment in the U.S. Employers must complete the Form I-9 to verify the identity and employment authorization of all individuals they hire, including U.S. citizens. Form I-9 must be retained and stores by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must also be available for inspection by authorized U. S. Government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.
Filling Out Form I-9
The Form I-9 has three sections: one the employee must fill out, one the employer must fill out and a third that is only applicable in some cases.
In Section 1, the employee must provide his or her name, address, and date of birth. In addition, the employee must attest to his or her status as a U.S. citizen, a noncitizen national of the U.S., a lawful permanent resident, or an alien authorized to work for a specified period of time. This part of the form must be completed no later than the first day of work for pay.
To comply with Section 2, the employer must physically review documents supplied by the employee to verify both the employee’s identity and work eligibility. The Form I-9 contains three lists of acceptable documents. List A includes documents such as a U.S. passport or permanent resident card that can be used to verify both identity and work eligibility. List B contains documents for verifying identity, such as a driver’s license or state issued ID card, and List C identifies documents can be used to verify work eligibility, such as a social security card or state issued birth certificate. If the employee doesn’t provide a document from List A, one document from List B and one from List C must be supplied.
Only valid, original documents that reasonably appear to be genuine and related to the employee presenting them may be used for complying with Section 2. The employer should verify that the information on the documents matches the status attested to by the employee. If the documents do not appear to be genuine or related to the person presenting them, the employer cannot accept them. In that case, the employer must ask if the employee can provide other documents that would satisfy Form I-9.
Upon receiving satisfactory documentation, the employer must enter the employee’s name, the document’s title, the issuing authority, the document number and expiration date, the date the employee will begin to work for pay, the name of the person completing Section 2, and the employer’s business name and address.
Warning: Form I-9 contains an anti-discrimination notice prohibiting discrimination based on citizenship or national origin. It does not allow employers to specify which documents they will accept from any employee. If an employee asks which documents are needed, the employer should provide the Form I-9, which includes Lists A, B and C.
Warning: The employee must provide the required documents within three business days of the date of hire or be terminated. Otherwise, the employer may be subject to penalties.
If the employee has supplied work authorization documents that have an expiration date, the employer is required to fill out Section 3 to update the information on or before their expiration to include a new document expiration date. The U.S. Immigration and Customs Enforcement (ICE) suggests that employers remind employees of the expiration date and the need to provide a new document from either List A or List C at least 90 days prior to the expiration date. Once the employee provides an unexpired document, the employer must examine it to ensure that the document appears to be genuine and relates to the employee.
Be Careful to Ensure Accuracy and Completeness
ICE imposes heavy penalties for non-compliance with Form I-9 paperwork ranging from hundreds to thousands of dollars per Form I-9. The fines vary depending upon the nature of the offense, with lower, though still harsh, penalties for oversights such as the employee failing to fill in information like date of birth or date of hire. Substantive violations such as an employer’s failure to check an employee’s personal identification documents can result in more onerous fines, particularly if the employer knowingly hired or continued to employ an unauthorized alien.
How to Protect Yourself
As part of our services for small business owners, the experienced business and corporate attorneys at Davis Law Group can provide you with guidance about how to meet your obligations under Form I-9 as well as other questions about the daily operations of your business. Please call us today to schedule a meeting.