Immigration NewsFlash Form I-9:

Please note effective December 2007, employers must use the new version of the I-9 form dated [Rev. 06/05/07] on the bottom right hand corner of the form.  Using any other version will subject the employer to possible sanctions, penalties, and/or fines.

Purpose of I-9 Form

The 1986 Immigration Reform and Control Act (“IRCA”) sough to control illegal immigration by eliminating employment opportunity as a key incentive for unauthorized persons to come to the US.  IRCA makes all US employers responsible for verifying, through a specific process, the identity and work authorization or eligibility of all individuals, whether US citizens or not, hired after November 6, 1986.

Employers are required to complete I-9 Employment Eligibility Verification Forms for all employees.  The employer’s obligation to review documents is triggered once the person is hired (i.e. start date of employment), whereupon the employee is entitled to submit documents to verify his identity and work eligibility within 3 days of his start date.

Anti-Discrimination

This I-9 process cannot be used to pre-screen employees for hiring.  The employer cannot demand more or different documents than an employee chooses to present, provide that the documents presented are acceptable under the Form I-9 requirements.  The employer cannot also demand documents issued by the US Citizenship and Immigration Service in lieu of other acceptable document(s) from List A, B or C and may not consider the fact that work authorization documents have future expiration dates as cause for not hiring or for terminating employment.

Who Must Complete I-9 Form

All employees, citizens and non-citizens, hired after November 6, 1986, must complete the Form I-9 at the time of hire, which is the actual beginning of employment. The employer is responsible for ensuring that section one is completed properly and in time.

Who Does Not Have to Complete I-9 Form

The following employees do not have to complete I-9 forms:
 

§         Employees hired on or before November 6, 1986 and continuously employed by the same employer

§         Individuals performing casual employment who provide domestic service in a private home that is sporadic, irregular, or intermittent

§         Independent contractors; and

§         Workers provided to employers by individuals or entities providing contract services, such as temporary agencies (in such cases the contracting part is the employer for Form I-9 purposes)

Please note that even though employers are not required to get I-9 forms for independent contractors, the employer must remember the following:

§         An employer is not permitted under the law to contract for the labor of an individual whom he knows is not authorized for employment.  Employers who violate this prohibition may be subject to civil and criminal penalties.

Timeline to Complete I-9 Form

The Form I-9 must be completed for each employee within three days of the start of employment. If the duration of employment is less than three days, Form I-9 must be completed at the time employment begins.

How Long to Maintain I-9 Form

An employer must retain the Form I-9 for each employee either for three (3) years after the date of hire or for one (1) year after the employment is terminated, whichever is later.  All current employees, therefore, must have I-9 forms on file with the employer.  Upon request, all I-9 forms subject to the “retention” requirement must be made available to an authorized official of the Department of Homeland Security, and/or to the Department of Labor, Office of Special Counsel for Unfair Immigration-Related Employment Practices.

Missing I-9 Form for an Employee

An employer who discovers that the I-9 form is not on file for a given employee should request that the employee complete section 1 of the I-9 immediately and submit documentation as required in Section 2.  The new form should be dated when completed – never post-dated.  Employers may provide an explanatory annotation as to why the I-9 form was not completed on a timely basis.

Discovering and Terminating an Unauthorized Employee

An employer must terminate employment for any employee who does not provide acceptable documentation or risk being subject to penalties for “knowingly” continuing to employ an unauthorized worker if the individual is not in fact authorized to work.

An employer who discovers an employee is working without authorization should reverify the work authorization by allowing the employee another opportunity to present acceptable documentation and complete a new I-9 form. 

Any employer who know or should have known that an employee is unauthorized to work in the US may be subject to serious penalties for “knowingly continuing to employ” an unauthorized worker.

Successive Employers and Reorganizations

Employers that acquire a business as a result of a corporate reorganization, merger, or sale of stock or assets, and retain the predecessor’s employees are not required to complete new I-9 forms for those employees and instead may choose to rely on the I-9 forms completed by the predecessor employer if the employees are continuing in employment, and they have a reasonable expectation of employment at all times.  However, the successor employer will be held responsible if the predecessor’s I-9 forms are deficient or defective.

How Can an Immigration Firm Help Your Company Maintain I-9 Compliance

Do not wait until you receive an unexpected visit from the Department of Labor and/or the US Immigration Customs Enforcement to contact us and ensure that your I-9 documentation is in compliance with immigration regulations.  Err on the side of caution and contact us today if you have any questions regarding your company’s existing I-9 compliance.  Our Immigration Firm can provide your company with the assurance of I-9 compliance.  We can provide:

Comprehensive Internal Audits: 

Our US Immigration Attorney can meet with your human resource personnel/department to:

§         review your existing I-9 procedures,

§         conduct an internal audit of your existing I-9 forms,

§         make a comprehensive list of necessary revisions and work with the staff to make any technical corrections  on the I-9 forms that are legally possible; and

§         provide you with a streamlined process of obtaining, maintaining and reverifying the company’s I-9 forms for the future.

Third Party Audit Certifications:

Our US Immigration Attorney can also provide your company with Audit Certifications, now required by many, multi-national corporations from its contractors.  The Audit Certification requires a third party auditor such as an immigration attorney to come and review all I-9 forms on behalf of the contractor to confirm that the contractor’s I-9 forms are all in compliance with I-9 regulations and immigration laws.  Only once the Audit Certification is completed will the contractor be officially granted the contract from the multi-national corporation.