Are you paying attention to the Employment Eligibility Verification Form (I-9)? It is worth the effort. Even if you elect to participate in E-Verify, you continue to be dependent on the I-9. Employers who fail to properly complete, retain, and/or make available for inspection Forms I-9 as required by law may face civil money penalties in an amount of not less than $110 and not more than $1,100 for each individual with respect to whom such violation occurred.
The Immigration Reform and Control Act of 1986 (IRCA) impedes employers from hiring individuals who are not legally entitled to work in the United States. IRCA prohibits employers from discriminating in recruiting, hiring, terminating, or referring based on national origin, or citizenship status.
Effective November 6, 1986, all U.S employers are required to have a completed I-9 on file for every active employee hired after that date. The completed I-9 verifies that the individual (U.S. citizen or non-U.S. citizen) is eligible to work in the U.S. The employer is responsible for ensuring that the I-9 is completed correctly. The employee fills in, signs and dates section 1 and the employer completes section 2 using the documents provided by the employee. It is not sufficient to have the information attached or on file; the information must be documented on the I-9 form in the appropriate column. Note that by signing the I-9, the employer confirms it has it inspected the required supporting documents for authenticity.
Employers should use the amended I-9 "(Rev. 06/05/07)N" for new hires. Employers do not need existing employees to complete the revised form unless they are required to be re-certified or were hired after the new form became effective, November 7, 2007, and an older version of the I-9 was used at hire. The updated form is available at http://www.uscis.gov/files/form/I-9.pdf
Form I-9 form must be completed within 3 business days of the hire date. If the employer is open on weekends or holidays, these days are included as business days. If the employee does not provide acceptable documentation within the 3 days, the employer must terminate the employee.
Forms I-9 are to be retained for 3 years after the employee is hired or for 1 year after termination, whichever is longer. These forms should filed separately and not in the employee's personnel file.
Upon request, employers must provide Forms I-9 to authorized officers of the Department of Homeland Security (DHS), the U.S. Department of Labor (DOL), or the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) for inspection. These officers will give the employer at least three days (72 hours) advance notice before the inspection. Employers may waive the 3-day notice or request an extension of time to produce the forms.
If an employer discovers that is has not complied with I-9 regulations, every effort should be made to comply as soon as possible. Missing information should be clearly inserted by the employee in Section 1 and by the employer in Section 2. These corrections should be initialed and dated the day of correction. Do not backdate or otherwise falsely make an I-9 form appear as if it is or has been in compliance.
If an I-9 form was never created, generate one now. While still not in compliance with the 3 day completion rule, if done correctly, amended and/or new forms may negate other violations and will support a good-faith defense.
You can get a copy of M-274, Handbook for Employers, with instructions for completing the Form I-9 at http://www.uscis.gov/files/nativedocuments/m-274.pdf
Non-compliance, whether intentional or simply caused by oversight, has severe consequences. Unfortunately, most employers are unaware that they have a problem with the I-9 form requirements until they are audited by governmental authorities. By that time, it is generally too late to avoid penalties. Be proactive, audit Forms I-9, and take correction action if needed.
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