THE I-9 AND EMPLOYER COMPLIANCE
In 1986, Congress passed The Immigration and Reform Control Act (IRCA). This Act, subjects all Employers to sanctions for knowingly employing any unauthorized workers. However, because Congress was worried that this may cause Employers to discriminate against any ‘alien’ or ‘foreign’ employee who looked or sounded different, it included strict provisions, that prohibit discrimination on the basis of citizenship or national origin.
The I-9 or the Employment Eligibility Verification form is a simple one-page form that must be completed by both the employer and the employee whenever a new employee is hired. The purpose of the form is so that the Employer can document the identity and eligibility to work of each employee. The current version of the form is dated 03/08/2013 and no other previous versions will be accepted.
The I-9 requires an employee must attest to his or her identity and status to legally work in the US. This must be confirmed by presenting acceptable documentation evidencing identity and employment authorization. The employer has an obligation of examining the employee’s documents and to determine whether they reasonably appear to be genuine and to relate to the employee and record the document information in the Form.
There are 3 distinct Lists of acceptable documents for the I-9.
List A documents are those that in a single document confirm both identity and employment authorization. Employees presenting a List A document should not be asked to present any other document. Examples of List A documents are: US Passport, US Green Card, Foreign passport with an I-94 and Visa, Employment Authorization Document (Card) with a photogrph.
List B documents only confirm a person’s identity and if one of these is presented then a List C document is also required to prove employment authorization in the US. Examples of List B documents are: US driving license, or other US issued photo-ID cards like voter cards, military cards, school ID.
List C documents only confirm a person’s authorization to work and if one of these is presented, then a List B document, as proof of identity, is also required. Examples of List C documents are: Social Security Card (without restrictions on work authorization), employment authorization document issued by Department of Homeland Security.
Click here for a full list of acceptable documents.
The I-9 files must be retained for the period of employment and after termination for either 3 years from the date of hire or 1 year after termination, which ever is later.
Some common misconceptions that employers have which need to be clarified:
An I-9 is not only meant for foreign workers. It must be completed for every new employee who is hired to work in the US- whether he/she is a US Citizen, LPR, foreign student, a foreign employee, or even your family member.
Since all foreign workers get work authorization only for a limited period, the I-9 must be re-verified once the initial authorization expires and the new authorization is applied for and later received.
A Green Card of a Driving License must not be re-verified (unless it’s a conditional Green Card based on marriage to a US Citizen).
Timing is VERY important. The employee must sign Section 1 on or before the first day of work for pay. The employer must review the documents and sign Section 2 within 3 business days after the employee’s first day of work.
The employee must not just sign and present the document but also tick the appropriate box on the list to confirm what he is presenting. Just signing without correctly ticking the box may be an inadvertent error by the employee but the employer will be held responsible.
Over documentation amounts to discrimination and fines for this are the same as for under documentation or lack of review. So employers should not ask for more documentation than required and also should not ask for specific documentation only.
The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.