Complying with the new Form I-9

Form I-9, officially the Employment Eligibility Verification, is a United States Citizenship and Immigration Services form. Mandated by the Immigration Reform and Control Act of 1986, it is used to verify the identity and legal authorization to work of all paid employees in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States.

The Immigration Reform and Control Act of 1986 (IRCA) required employers to verify that all newly hired employees presented facially valid documentation verifying the employee’s identity and legal authorization to accept employment in the United States. The I-9 form, or more properly the Employment Eligibility Verification Form, is provided by the federal government for that purpose.
Every employee hired after November 6, 1986 must complete an I-9 form at the time of hire. Employees must complete Section 1 of the form upon commencing employment. The employer must complete Section 2 within three days of the employee’s starting date at work. The employer is responsible for ensuring that the forms are completed properly and in a timely manner.

Prerequisites for employees

In completing form I-9, prospective employees attest, under penalty of perjury, that they are in one of the following categories:

• A U.S. citizen,
• A non-U.S. citizen national,
• A lawful permanent resident or
• An alien authorized to work.

Documentation for proof of identity or employment authorization

With the form, prospective employees must provide documents that prove their eligibility to work. A variety of documents is acceptable in a specified combination with another. The prospective employee must provide:
• One document that establishes both identity and employment eligibility (on List A on the I-9) or
• One document that establishes identity (on List B) together with another document that establishes employment eligibility (on List C).

List A

Documents that may be used under “List A” of the I-9 form to establish both identity and employment eligibility include:

• An unexpired U.S. Passport
• A U.S. Passport Card
• A Permanent Resident Card (often called a “green card”) or Alien Registration Receipt Card with photograph
• An unexpired Temporary Resident Card
• An unexpired foreign passport with an I-551 stamp, or with Form I-94 (For the certain alien who is authorized to work with restrictions. The person should also attach the documents which indicate an unexpired employment authorization.)
• An unexpired Employment Authorization Document issued by the United States Department of Homeland Security that includes a photograph (Form I-766) or
• An unexpired Employment Authorization Card

List B

Documents that may be used under “List B” of the I-9 to establish identity include:

• Driver’s license or identification card issued by a U.S. state or outlying possession of the U.S. provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address
• Federal or state identification card provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address
• School identification card with photograph
• U.S. Armed Services identification card or draft record
• Voter Registration Card
• U.S. Coast Guard Merchant Mariner Card
• Native American tribal document
• Driver’s license issued by a Canadian government authority or
• Trusted traveler documentation

For individuals under the age of eighteen, the following documents may be used to establish identity:

• School record or report card
• Clinic, doctor or hospital record
• Daycare or nursery school record

Employees who supply an item from List B (to establish identity) must also supply an item from List C (to establish employment eligibility).

List C

Documents that may be used under “List C” of the I-9 to establish employment eligibility include:

• A U.S. Social Security card issued by the Social Security Administration
• A birth certificate issued by the U.S. State Department (Form FS-545 or Form DS-1350)
• Original or certified copy of a birth certificate from the U.S.
• A Certificate of U.S. Citizenship (Form N-560 or N-561)
• A Certificate of Naturalization (Form N-550 or N-570)
• Native American tribal document
• U.S. Citizen ID Card (Form I-197)
• An ID Card for the use of a Resident Citizen in the United States (Form I-179),
• An unexpired employment authorization card issued by the Dept. of Homeland Security (other than those included on List A) or
• Consular Report of Birth Abroad (Form FS-240)

Employees who supply an item from List C (to establish employment eligibility) must also supply an item from List B (to establish identity).

Reverification

Employers must update or reverify certain ID documents at or prior to their expiration date. This does not apply to already presented and accepted non-expired U.S. Passports or Permanent Resident Cards when they reach their expiration date, nor to any List B documents (e.g., state driver’s licenses and state IDs). The USCIS website, in the Employer section, Employer Bulletins, lists the limited requirements and allowed instances for reverification.
For U.S. citizens, I-9s are valid continuously unless a break of more than a year of employment occurs. International employees on F-1 (student), H-1B (specialty occupation), or J-1 (exchange visitor) visas must have their I-9 reverified each time their visa has expired with a new work authorization permit (renewed visa with work authorization, EAD, Permanent Residence Card, etc.).

Retention

Employers must retain a Form I-9 for all current employees. Employers must also retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later. Employers must show their employees’ I-9 form any time the immigration or labor authority requests it.

IRCA prohibits an employer from:

• Knowingly hiring an alien who is not authorized to work.
• Hiring any individual without verifying identity and work authorization.
• Continuing the employment of a person if the employer knows or should know the person is not authorized to work.
•  Knowingly forging, counterfeiting, altering or falsifying any document to satisfy any immigration-related requirement.
• Knowingly using, accepting or receiving any false document to satisfy any immigration-related requirement.
• Discriminating in hiring or firing against a citizen or intending citizen on the basis of national origin or citizenship status.
• Intentionally requiring an employee to present any specific document or combination of documents for Form I-9 purposes.
• Intentionally requiring an employee to present more or different documents than are minimally required for the employment verification process.
•  Intentionally refusing to honor documents that reasonably appear to be genuine.

What Companies can/should do.

Once an offer of employment is accepted the employee must complete Section 1 of the form no later than the first day of work for pay, or before the first day of work, if the employer has offered the individual a job and if the prospective employee has accepted it.

Section 1 – Employee Information and Attestation

Section 1 is filled by the employee. Employees must list their full legal name, middle initial and maiden name, if applicable. They must provide their existing address and date of birth. The employee does not have to give his/her social security number unless the employer uses E-Verify. The employee must attest under the penalty of perjury his/her citizenship or employment-authorized immigration status, and (if applicable) the Alien or Admission Number, and the date employment authorization expires. The employee must next sign and date Section 1 certifying the information as true. The employee must sign the form even if a translator assists in the preparation of Section 1. The translator must also provide his or her name, address and signature and date the form. Employers must review the information that the employee has provided in Section 1 and ensure that the employee provided information in all required fields.

Section 2 – The Employer Review and Verification

Section 2 must be filled by the employer no later than three business days of the employee’s first day of work for pay. The employee must present the employer with unexpired original documentation that shows identity and employment authorization. Importantly, the employee chooses which documentation to present. An employer cannot specify which documentation the employee uses and doing so would subject the employer to a claim of unlawful discrimination. The documents on List A show both identity and employment authorization. Some List A documents are in fact a combination of 2 or more documents. In these cases, the documents presented together count as one List A document. Employees presenting an acceptable List A document should not be asked to present any other document. The employee must make one selection from List A , or one selection from List B in combination with one selection from List C. List B documents show identity only, and List C documents show employment authorization only.

Following steps can be taken in order to take your organization one more step toward being a complaint organization and ready for an ICE audit at any point of time.

• Correct & complete Form I-9: Make sure I-9 forms are completed correctly and accurately for all new hires. Ensure the employee completes section one of the I-9 on the first day of employment and the I-9 is filled within 3 business days from the date of hire. Accept only original documents, not photocopies, and don’t require additional documents from foreign employees. Make sure all I-9 documents are verified in person to ensure that documents are legitimate. Do not accept tampered, photocopied, faxed or scanned documents for I-9 purposes. Employers should allow the employee to choose from the list of acceptable documents.
• Set out I-9 compliance policy: Establish an I-9 compliance policy in the company and make sure that the policy is followed uniformly across locations irrespective of race or gender. This will safeguard you from discrimination lawsuits, establish good faith efforts and mitigate potential penalties.
• Regular I-9 audits: Conduct an in-house audit of I-9 forms and correct mistakes. Cross out incorrect information, add correct information, initial and insert current date if you’re using paper I-9. Also put up processes and procedure to regularly conduct I-9 audits and check whether there are any discrepancies.
• Monitor & re-verify: Ensure that you re-verify expiring work authorization documents before they expire and do not allow an employee to continue to work after his or her work authorization document expires. Set up a system in place to track expiring work authorization dates of employees and those who need to be re-verified. You can set an automated tickler system to notify the employee of the impending expiry date and take necessary action accordingly.
•  Purge obsolete I-9: The ICE rules require employers to destroy I-9 forms either one year after the date of termination, or three years after the date of hire, whichever is greater. Purging outdated I-9 forms can help businesses to free up storage space and also helps to protect the sensitive information of previous employees. If an employer fails to destroy I-9 forms within the outlined time frame, then that employer will be subject to fines. Make sure that the individuals in your company who complete the I-9 process are properly trained and that you regularly audit I-9 compliance. Create your own culture of compliance and be ready to respond to an ICE audit with confidence.

EMPTrust can help you with your I-9 and E-Verification process. EMPTrust’s software application allows companies to manage I-9 Forms electronically and seamlessly integrate with employment eligibility verification (E-Verify) all at one go.