In these post 9-11 days, the INS probably has fewer resources to pursue garden-variety employer sanctions cases (especially for non-intentional paperwork violations). However, it has been noticed that the INS has in general taken a tougher stance on all errors and omissions that are noticed. This tougher policy can – and does – engage unaware US employers in the snare of employer sanctions with potential liability extending into the thousands of dollars.
Much, if not all, of this potential liability can be avoided by simply filling in a one page form, the I-9. Elsewhere on this website is a detailed article on the form I-9. Therefore, the points raised in that article will not be repeated here. Rather, this article is a guide to properly filling in and validating the Form I-9.
As background, the Form I-9 was mandated by the Immigration Reform and Control Act of 1986 (IRCA). US employers are required to fill out the form I-9 for every new hire after November 1, 1986. Employers must fill in and retain this form. Employers do not need to submit this form to any government agency, unless requested in an audit. In actuality, while most large US employers are aware of the I-9 requirement and comply with it, most medium sized and small businesses continue to be unaware of this requirement, sometimes to their detriment. Unfortunately even those businesses that do comply with the I-9, sometimes fail to revalidate or update the information on the I-9, as discussed below.
The form I-9, an innocuous-looking one page document, is divided into three sections.
Section 1 is filled out by the proposed employee (or by the employee) at the time of hire. Under penalty of perjury, the employee must declare whether his or her employment eligibility arises from being a US citizen or national, a Lawful Permanent Resident (someone who has a “Green Card”), or an alien with work authorization until a certain date.
Simply because an employee claims that he or she is a citizen or permanent resident does not absolve an employer from its responsibility to fill in Section 2.
Section 2 requires that the employer review and verify the employee’s claim of employment eligibility within 3 business days of hire. The employer must review, from a list of eligible documents listed on the I-9, those documents that the employee provides in support of his or her claim to eligibility. An employer cannot demand to see specific documents (example: drivers’ license and Social Security card). The documents may not simply be reviewed and returned; the employer must enter the specifics of each qualifying document in Section 2 on the form I-9.
I advise my clients that they should also photocopy the documents submitted by the employee (Passport, green card, drivers’ license, social security card, etc), and attach those copies to the I-9. In case of an audit, the employer can then prove to the government its demonstrable reliance on the documents that the employee provided. The employee’s date of hire must also be entered in Section 2. The employer or representative must then sign and fill in the certification at the bottom of Section 2.
What happens if the employee is laid off, is terminated, or quits? The employer has the duty to retain the form I-9 for a period of three years after the date of hire, or 1 year after the date employment ends, whichever is later. (That means that employers cannot discard I-9’s for employees who have been continuously employed for over 3 years).
For most employment situations, the employer will typically fill in Section 2, and retain the I-9, and that’s the end of that issue! However, in some industries or businesses, especially those typically employing foreign labor or migrant workers, there may be a high turnover of employees, many who may be returning seasonally. This requires an examination of Section 3 on the I-9.
What happens if the employee is re-hired? If the employee’s work authorization or legal status is still current and valid as of the time of the original hire, the employer simply needs to fill in part B of Section 3 of the I-9 and sign and date it.
If the employee’s work authorization is not permanent (as is with a US citizen or Permanent Resident), and is subject to a date of expiration, then the employer has a duty to keep track of the expiration date and ask the employee for updated employment authorization documentation. If presented with such updated documentation, the employer has a responsibility, as with Section 2, to identify this document and its expiration date, and fill in this information in Section 3 on the I-9. The earlier instruction to photocopy and attach the new employment authorization documentation as with Section 2 still stands. Finally, Section 3 needs to be signed and dated. Again, the employer retains the I-9 in its files, until the next revalidation is needed.
What if the employee changes his or her immigration status (for example, from a non-immigrant worker to a Permanent Resident)? In such a case, it would appear that the prudent course of action would be to fill in Section 3 on the existing I-9. The employer should then retain the original I-9, and ask the employee to fill in a new I-9, following the instructions above. The employer should likewise complete Section 2 on the new I-9, and maintain the new I-9 together with the old I-9 and all supporting documents.
The I-9 is a simple form to fill, but its very simplicity is sometimes a pitfall. Failing to recognize the complex duties and verification requirements imposed by the IRCA can lead to penalties and fines for innocent employers.
Copyright 2002 Farhad Sethna, All rights reserved