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Preparing the 'Employment Eligibility Verification' Form I-9
Interestingly enough, after being in effect for over 20 years, employers still make clerical errors or omission errors when checking and completing the Form I-9. These errors, even when not intentional, may cost employers considerable amounts of money in form of fines and penalties.
The intention of this article is to alert you to be more diligent about the completion and handling of the Form I-9 and to discuss with you some of the ins-and-outs of properly completing the Form I-9.
Background
The Form I-9, or more properly called the “Employment Eligibility Verification Form”, is provided by the federal government for the purpose of verifying an individual’s right to work in the United State. Every employee hired after November 6, 1986 must complete or have completed a Form I-9 at the time of hire.
Purpose
The Form I-9 was developed to stem illegal immigration into the United States. Employment is often the magnet that attracts people to reside in the U.S. illegally. The purpose of the employer sanctions law is to remove this magnet by requiring employers to hire only individuals who may legally work here: citizens and national of the United States, lawful permanent residents, and aliens authorized to work.
Who can inspect the Form I-9?
There are three areas of the U.S. Government that have a statutory authority to enter a place of business and inspect the Form I-9.
- The United States Immigration and Customs Enforcement (I.C.E.)
- The United States Department of Labor
- The United States Office of Special Counsel
Fines and Penalties
As mentioned in the introduction, employers may face fines and penalties for not properly completing and maintaining the Form I-9. An employer who hires an unauthorized worker may be fined between $250 and $5,500 per worker. In addition, such an employer can be barred from federal government contracts for a year. An employer who knowingly accepts fraudulent documentation may also be criminally prosecuted under immigration laws.
An employer who fails to properly complete and keep on file the Form I-9 may be fined $100 per missing item on the form, up to $1,000 per form, even if the employee is legally authorized to work in the US.
Who Fills in the I-9 Form?
- Section #1 is completed by the employee at time of hire. If the employee uses a preparer or translator to fill out the form, then that person must certify that he/she assisted the employee by completing the translator/preparer block in Section #1
- Section #2 is completed by the employer within three (3) work days of the date of hire, and the employer must see the original identity and work authorization document(s)
- Section #3 is done by the employer, when updating and/or re-verifying Form I-9.
How to complete the Form I-9
Section 1 is complete by the employee. The employee must complete all areas of section 1 and check one of the four boxes in the attestation area. If any of these areas are left blank, or the form is not signed by the employee, DO NOT ACCEPT THE FORM, return it to the employee and have the employee complete the Form I-9. Remember, if the employee makes a mistake on the I-9, it is the employer who will be fined!
Section 2 is completed by the employer and must be done within three days of hire. First, ask the employee for proof of identity and work authorization. The employer may not specify what documents the employee must produce. The employer can only ask the employee for identity proof and work authorization. Based upon what documents the employee produces, the employer then either completes:
- List A –which contains documents that establish both identity and authorization to work
- List B & C – which combined contains documents establishing identity and employment authorization
Employers must record:
- Document Title
- Issuing Authority
- Document Number
- Expiration Dade, if any
- The date employment begins
Frequently Asked Questions
Is the Form I-9 available in Spanish?
Yes, there is a Spanish language version of the Form I-9, but only the English version may be used. The Spanish Form I-9 may only be used in the United States for translation purposes. However, the Spanish version may be used in Puerto Rico.
How do I know if I am using the most current Form I-9?
The Form I-9 was updated in February 2009. Look for the revision date in the bottom right hand corner of the form, it should read Rev. 02/02/09.
Employee Relations members may download the most current Form I-9 in the Forms Library, or you can go the USCIS website and download the form. Click here to download the Form I-9.
If you are not using the most current form, download the new form and discard the older versions.
Can employees produce copies of documents?
No. With the exception of a certified copy of a birth certificate, the employee must produce original documents.
How do I know if a document is genuine or false?
You are not required to know with absolute certainty whether a document is genuine or false, but the law requires that you examine the original document (not a photocopy) and make a good faith determination that the document:
- Appears to relate to the employee
- Appears to be genuine
- Is included in the Lists of Acceptable Documents on Form I-9.
Please note that rejecting a document that later proves to be genuine, could result in a violation of the anti-discrimination provisions of immigration law, so employers should guard against being overzealous in their inspection of documents from the employee.
Can I get my employees to complete a new Form I-9?
Yes, provided you ask all employees to complete a new Form I-9. The one exception would be for employees with a work permit that is about to expire. You may complete Section 3, or complete a new Form I-9 on or before the expiation date of their work permit.
If I get all new Form I9s, what do I do with the old ones?
Never discard a previously completed From I-9 or the supporting documentation. If you are having all your employees complete a new Form I-9, attach the new Form I-9 to the old Form I-9.
How long do I need to keep the Form I-9?
You need to keep the Form I-9 for as long as the person is an employee, for one year after date of termination, or for 3 years after the date of hire which ever is longer.
For example, if an employee resigns after one year of employment, you must keep the Form I-9 for two more years. If an employee resigns after four years of employment, you must keep the Form I-9 for one more year.
What do I do about employees who were hired before November 6, 1986?
The Form I-9 did not become law until November 6, 1986, so any employee hired before that date does not have to have a Form I-9, unless you are asking all employees to complete a new Form I-9.
Can I make copies of the supporting documents?
Yes, you may make copies of supporting documents. However, be sure to make copies for all employees and not just some. Being inconsistent in this area, even if inadvertently, could subject you to a discrimination claim.
What do I do with an employee who only has temporary work authorization?
For employees who indicate an employment authorization expiration date in Section 1, employers are required to re-verify employment authorization for employment on or before the date shown.
What are the Important Points to Remember?
- When checking the documents for any of the lists, be sure to check that they are for the employee and that the documents are current, not expired
- If the document looks forged or is difficult to read, do not accept the document and ask for other documents
- Do not just copy the forms and file them, LOOK at them
- For a complete list of acceptable documents, refer to page 5 of the Form I-9.
- List A comprises documents that are proof of identity and employment eligibility
- List B and List C must be used together
E-Verify
There is good news for employers when it comes to proving an employees authorization to work. There is an electronic Employment Eligibility Confirmation available called E-Verify. The verification checks the employee’s information with the Social Security Administration and the Department of Homeland Security - Immigration and Customs Enforcement. The E-Verify system is a voluntary system and is available at no additional cost to clients of Employee Relations who use our system for pre-employment background investigations.
As with the Form I-9, E-Verify must be done with within three days of hire but has the added benefit of electronically verifying an employee’s right to work in the U.S. and provides a “safe harbor“ should one of the three government agencies with authority to inspect Form I-9’s ever enter your business.
The Final Word
- Form I-9 and E-Verify must never be used to discriminate against any group of employees
- Every new hire after November 6, 1986 must have a Form I-9 on file
- Form I-9 should be completed within three days of hire
- As an employer, check the documents being used for proof of identity and authorization - don’t just copy them – read them
- E-Verify cannot be used on current employees
- Once signed up for E-Verify, verification must be done on all newly hired employees
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