The Employer’s Guide to i-9 Form Compliance

Posted 2 weeks ago by contentpros

Everything you need to know about i-9 Forms and verifying employment eligibility

Like many HR managers, you may be trying to figure out how to navigate verifying employment eligibility and i-9 form compliance. In this article, you’ll get answers to some of the most common questions that employers have about Form i-9, including:

This guide is meant to help you understand the current equirements and how to follow them, without missing a beat!

 

What is an i-9 form?

In most cases, employers are responsible for verifying the identity and employment eligibility of their employees.

This is done through form I-9, which is used to verify the identity and employment eligibility of new hires.

Introduced by the Immigration Reform and Control Act (IRCA) of 1986, the I-9 form has been updated several times in recent years. As an HR professional or business owner, that may give you some anxiety, leading you to wonder if what you thought you knew about the I-9 form still holds water.

You’re right to be concerned. As Patrick Valtin says in Entrepreneur, “More than ever before, small business owners and their HR managers should be devoting considerable time and resources to conduct extensive self-audits in anticipation of any Form I-9 audit by ICE, which can occur with as little as a three-day notice.” Oversight has indeed been tightening, and you’re required to keep up, no matter how confusing it may be.

 

What are the i-9 form requirements?

Section 1   due by the end of the first workday
Each employee must fill out section 1 of the i-9 at the time of hire, meaning after accepting the job and before the end of the first day of work.

Section 2   due within three business days of the hire date

Employers must ensure that section 2 of the I-9 is completed within three business days of the hire date. This means that if the employee begins work on a Monday, it must be completed by the end of the day on Thursday.

Keep in mind that you could be penalized during an ICE audit even if it turns out that your employees are legally allowed to work in the U.S. Seemingly minor errors, like forgetting to write the date or complete any particular line, can prove costly.

When it comes to an ICE audit, there is no “good faith” defense, Valtin explains. One company, Buffalo Transportation, was shot down by the Second Circuit of the U.S. Court of Appeals for attempting to use that defense in 2016. Likewise, a company called Hartmann Studios received a $600,000+ fine for not signing I-9 forms in a timely manner.

Who is required to fill out an i-9 form?

The majority of workers in the United States are required to fill out an i-9 form for employment verification. It’s easier to state the groups of people who aren’t required to fill out the I-9 Form than to state who is (everyone else).

I-9 Form Exemptions

Some workers are not required to fill out the I-9. According to the U.S. Citizenship and Immigration Services, you do not need to complete an I-9 Form for the following individuals:

  • Independent contractors.
  • Employees hired on or before November 6, 1986, and who have been continuously employed by you since then.
  • Independent contractors or those employed by contractors (including temp workers provided through an agency).
  • People who are not physically working in the U.S.
  • Individuals providing casual and irregular domestic work.

If your employee does not meet any of the criteria above, then they will need to complete an i-9.

One caveat to the above criteria: You cannot circumvent the regulations by hiring a prospective employee as a contractor because she is not eligible for employment and then have her perform the original role you wished to hire her for. Also, if you know a contractor is not allowed to work in the U.S., you cannot contract that person.

If an employee began working for his company before November 7, 1986, you do not need to complete an I-9 Form for him, says the Society for Human Resource Management (SHRM).

The SHRM explains, “Employment is ‘continuing’ when an employee transfers within the company to another location, returns from an employer-approved paid or unpaid leave of absence, is recalled from a layoff that did not result in termination of employment, or is employed by a related or successor employer.”

 

How do I send an i-9 form to my employee?

Here are a few common ways to send an i-9 form to an employee:

Option 1 – Send an i-9 Digitally for Free! 

GoCo recently introduced a free tool for sending i-9 forms to employees and collecting digital signatures online. It’s totally free and includes compliance tools for verifying forms are filled out correctly.

Option 2 – Manually Print and Sign

Provide a printed, paper copy for the employee to sign. This method is free, but it’s a manual process and is potentially more tedious and time consuming. You’ll also have to scan and file or maintain a paper file cabinet for archival purposes.

Option 3 – Pay for an e-Signature Solution

If you have an e-signature solution in place, you can upload and send i-9 forms for a fee. This method can be efficient if you already have a solution in place and you don’t mind paying the fee.

What documents do I need to verify employment eligibility?

To complete the I-9 form, you must follow strict protocols for verifying identity, as outlined below.

Forms of documentation employees can use

Here, we’ll delve into how to properly complete the form using the appropriate forms of identification, as outlined by U.S. Citizenship and Immigration Services (USCIS). An employee can present either one or more documents from List A, or one document from List B and one from List C.

List A: Documents Establishing Identity and Employment Eligibility

  • U.S. Passport or Passport Card.
  • Permanent Resident Card or Alien Registration Receipt Card (Form I-551).
  • Foreign passport with a temporary I-551 stamp or I-551 printed notation on a machine-readable immigrant visa (MRIV).
  • Employment Authorization Document (EAD) displaying a photograph (Form I-766).
  • Foreign passport with Form I-94 or I-94A displaying the same name as the passport and verification of the person’s nonimmigrant status if the person is a nonimmigrant alien (i.e., seeking temporary entry into the U.S. for a particular purpose) authorized to work for a particular employer for a specific period of time.
  • Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) along with Form 1-94 or I-94A displaying nonimmigrant admission status as per the Compact of Free Association Between the United States and the FSM or RMI.

List B: Documents Establishing Identity

  • Driver’s license or ID card from a state or outlying U.S. territory that displays a photograph and information such as name, birth date, gender, height, eye color, and address.
  • School ID card containing a photo.
  • Voter registration card.
  • U.S. military card or draft record.
  • Military dependent’s ID card.
  • U.S. Coast Guard Merchant Mariner Card.
  • Native American tribal document.
  • Canadian driver’s license.

Individuals who are 18 or younger may submit a school report card or record; a doctor, clinic, or hospital record; or a daycare or nursery record if they are unable to present a document from the above list.

List C: Documents Establishing Employment Eligibility

  • Social Security card, unless the card displays employment eligibility restrictions.
  • Certification of report of birth from the U.S. Department of State (Forms DS-1350, FS-545, FS-240).
  • Original or certified copy of a U.S. birth certificate or one issued from an outlying territory of the U.S., displaying an official seal.
  • Native American tribal document.
  • U.S. Citizen Identification Card (Form I-197).
  • Identification Card for Use of Resident Citizen in the United States (Form I-179).
  • Document issued by the Department of Homeland Security to authorize employment.

The USCIS notes that documents must not be expired. Visit the USCIS website to learn more about how to handle possible contingencies that may affect employees as well as details about any of these forms of documentation.

How do I verify employment eligibility documents for a remote employee?

What if the employee is working at a separate location from your place of business – somewhere far away, meaning you can’t fill out the form together in person? In that case, you need to have a separate entity examine the employee’s documents and fill out Section 2, says Kevin Lashus, an attorney interviewed by SHRM. He suggests working with a lawyer, bank representative, or notary for that purpose. The person handling that task needs to be the one who signs the form under penalty of perjury; not you. Otherwise, you’ll be liable for someone else’s mistakes.

 

What is E-Verify, and how do I do an E-Verify check?

The E-Verify system helps employers confirm workers’ employment status by matching the information provided against Department of Homeland Security (DHS) and Social Security Administration (SSA) records. For most employers, it’s a voluntary option, although certain employers are required to use it, such as some federal contractors and subcontractors, those in states that mandate it, and those who have been ordered in a legal ruling to do so, according to the E-Verify website.

If you use E-Verify, you must make photocopies of documents submitted for photo matching purposes. Such documents include a U.S. Passport, Passport Card, Employment Authorization Document (Form I-766), and Permanent Resident Card (Form I-551).

Further, if you use the E-Verify program, you must do so with all employees, not based on what you believe their immigration status, national origin, or citizen status to be.

 

How do I verify employment eligibility?

You are an HR professional; not a human lie detector or a document-analyzing machine. You must do your due diligence to detect documents that appear false on their surface but not get overly paranoid, lest you be accused of refusing to accept a document that appears valid.

“The rule is that employers must accept documents that ‘reasonably appear on their face to be genuine,’” says the SHRM. “But overzealous inspection could lead to a discrimination charge.”

Have a trained staff member guide employees through filling out section 1 of the I-9, advises immigration attorney Mira Mdivani in an interview with the SHRM. It’s common for a date or a signature to go missing, even when the employee and staff member believe the form was filled out in its entirety.

This trained staff member must be familiar with the different allowable forms of documentation and should examine each document submitted by the employee for authenticity.

 

How can I prevent discrimination during the I-9 process?

The IRCA forbids discrimination during the hiring process. Employers cannot discriminate based on national origin or citizenship status (provided they are legally allowed to hire the person).

All of the following are prohibited by the IRCA:

  • Knowingly hiring an undocumented immigrant who does not have employment eligibility.
  • Hiring a person without verifying identity and eligibility to work.
  • Retaining an employee if the employer is (or should be) aware that this individual is not eligible to work in the U.S.
  • Forging or changing a document to meet immigration requirements.
  • Knowingly accepting a falsified document to meet these requirements.
  • Discriminating when hiring or firing a person who is a citizen or an intending citizen based on their country of origin or citizenship status.
  • Specifically telling an employee to submit a particular document or combination of documents for I-9 completion.
  • Asking an employee to submit more – or different – documents than the I-9 verification process requires.
  • Refusing to recognize documents that appear to be valid.

The Department of Justice (DoJ) provides info on what employers can do to make sure they’re not discriminating while collecting this information. The DoJ states, “Under the law that the Immigrant and Employee Rights Section (IER) enforces, employers are not allowed to request more or different documents than what’s required to establish a worker’s identity and eligibility to work in the United States, request a specific document or reject documents that appear to be reasonably genuine on their face based on a worker’s citizenship status or national origin.”

What are my ongoing responsibilities for ensuring i-9 compliance?

Your responsibilities don’t end with the initial filing of the form. Here’s how to maintain compliance over time.

Tracking expiration dates

Implement a system for tracking expiration dates of work authorization documents. According to Lashus, failure to re-verify such information is a common cause of compliance failure.

“The employer must reverify that the foreign national is authorized to work beyond the original expiration date by examining new work authorization documents,” he states. “Many organizations do not have a method to track the expiration dates, and therefore fail to reverify.”

Failing to correctly record the title of a document, the body that issued it, and the expiration date are other major oversights.

Finally, if you must make corrections to an I-9 form, be sure to initial and date them.

Keeping records of data

What are your responsibilities regarding storing this data? Here are several key points to keep in mind.

  • You have the responsibility to safeguard this sensitive data. Keep I-9 files in a secure place apart from other employee files.
  • Keep these forms for as long as employees work for your business.
  • Keep forms from former employees for the required period of time. “In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer,” says the ICE.
  • Storing forms electronically can be acceptable when following rigorous guidelines. However, it’s probably far safer to keep the original form as well as any electronic copy you elect to store.

 

BONUS: Form I-9 Compliance FAQs

Mastering compliance with I-9 form verification rules doesn’t happen instantaneously. Having read our comprehensive guide on the topic, you may want to make sure you understood a few things correctly. Here are some FAQs that many HR professionals have about the I-9 form, along with answers to these common questions.

Can employees provide copies of their documents?

Only for birth certificates. For all other documents, employees must produce the original.

If I hire a contractor who hires undocumented subcontractors, am I liable?

It depends. If you truly weren’t aware of that problem, you may escape penalties. However, you definitely want to avoid doing that as the ICE targets employers who engage in this practice to get around regulations.

What if an employee submits documentation that doesn’t match the immigration status she claimed to have?

Explain the error to the employee and give her a chance to correct the mistake. Do not accept documents that don’t reflect the status the employee presented. You can ask if she can produce other documents that would fulfill the requirements.

What if an employee submits a document that looks fake?

Ask the employee if he can submit an additional document if he has provided one that does not seem genuine. Do not accept documents that appear false or do not seem to belong to the employee. However, make sure you’re using the same evaluation standards for all employees.

Should I fire a new employee if he can’t produce documents reflecting his employment eligibility?

If the employee cannot present these documents, you have three business days from his date of hire to terminate his employment.

If I receive a tip from another employee that a worker is undocumented, can I act on it?

This one can get a bit hairy. The SHRM advises not acting on tips alone as that can lead to a discrimination claim. However, if you receive a notice stating that the employee’s Social Security number has no match and you have received a tip previously, that can lead to problems. Using E-Verify for all employees can help you avoid such scenarios.

The USCIS provides an extensive list of FAQs for a variety of unusual situations to help you navigate the myriad contingencies that may arise as you complete the I-9 Form. Visit their website if you need assistance navigating additional challenges.

The I-9 and E-Verify Handbook (Alan House Publishing, 2017) will serve as a handy reference for any further questions that arise, as SHRM notes. It will help ensure your team gets the I-9 right every time!

Because the ICE’s audit process is so swift and unforgiving, it would be prudent to conduct your own internal I-9 audits. Make sure the person conducting yours has a strong knowledge of immigration law as it applies to the workplace. Taking this step will keep you protected and give you precious peace of mind!

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