The law prohibits employers from knowingly hiring or knowingly continuing to employ an unauthorized worker. Employers are required to take steps to ensure that employees are authorized to work in the United States.
The primary step is for employers to complete an I-9 Form and inspect an employee’s documents that establish identity and work eligibility. An employer can be liable for failing to comply with the employment eligibility verification requirements.
The Immigration Reform and Control Act (IRCA) and other non-discrimination laws prohibit employers from discriminating against applicants and employees because of the individual’s national origin, ancestry, or citizenship status. An employer cannot discriminate against work-eligible individuals.
Timing for Completion of the I-9 Form
I-9 forms must be completed for each employee hired after November 6, 1986.
Section 1 of the I-9 Form, which is completed by the employee, must be fully completed and signed on the day the employee begins work.
The remainder of the I-9 Form, which is to be completed by the employer, must be fully completed within the first three days of hire (if the person is hired for 3 days or less, however, the entire form must be completed at the time the employee begins work).
An employer can ask the new employee to bring in documents on the first day, but can’t force them to produce documents that first day-they have three days.
It is not a good idea to have new employees complete the form in advance.
It should be completed in the presence of a company representative, to ensure that the new hire is the one signing the form and to ensure that Section 1 of the form is fully completed.
Also, because the I-9 form includes information about a person’s age, marital status, and citizenship status, early completion could potentially lead to a claim of discrimination.
Completion of the I-9 Form
Each employee must be given a complete copy of the form, including the instruction page and list of acceptable documents.
Even though employee is responsible for completing Section 1 on the first day of work, the employer can be liable for any violations or omissions, so it is important for the employer to check it.
The employer must review original verification documents presented by the employee and complete Part 2 by third business day of the date employment begins. Copies of documents, laminated or metal Social Security cards are not acceptable (exception-an employee can present certified copy of birth certificate).
Do not tell the employee which documents to present or indicate that certain documents are preferred. If the employee asks, tell them it is their choice and you’ll accept any acceptable documents presented. Refer them to the list of acceptable documents.
If employee presents more documents than necessary (i.e., Social Security card and passport), ask the employee which documents he or she wishes to utilize. Do NOT copy more documents than are necessary to complete Section 2 of the form.
If the employee lists an expiration date for employment eligibility, but doesn’t present the document, you can’t ask for confirmation (although this will trigger a need to reverify once the date is reached).
Do not consider Section 1 expiration date in making hiring decisions.
Review documents to ensure:
- They are on the list of acceptable documents
- They appear genuine (not obviously forged or tampered with)
- The documents relate to the employee (check name and description); if discrepancies can’t be easily explained, contact counsel.
Complete Section 2 fully by third business day of the date employment begins; sign and date it.
Although employers are not required to keep copies of documents presented, it may help an employer in the event of a subsequent audit. Keep copies of documents if it is your company’s policy to do so.
Make note of any reverification dates.
Receipts for documents can be tricky. The receipt needs to be a receipt for replacement of a List A, B, or C document that was lost, stolen, or damaged; a temporary I-551 stamp on Form I-94; or refugee admission stamp on Form I-94.
Actual document must be presented within 90 days (for replacements and refugees) or, for I-551 cases, must present the I-551 within 180 days of hire. A receipt showing application for an initial period of employment authorization or extension of expiring status is not acceptable except in very limited cases.
Reverification and Rehires
Reverification is never necessary if the employee indicates that he or she is a U.S. citizen.
Generally, reverification is required if:
- Employee lists an expiration date for work authorization in Sec. 1
- Employee presents an employment eligibility document with an expiration date
To reverify, the employer can complete a new I-9 Form or complete Section 3, but be sure to follow the same procedures for all employees.
Reverify on or before the expiration date of employment authorization
If the employee cannot produce appropriate documents, you may need to suspend or terminate them; contact counsel if you have any questions.
If you are rehiring a person who previously filled out an I-9, you do not need to complete a new I-9 if you rehire the person within 3 years of the date that the I-9 was completed, and the employee is still eligible to work.
You should review the previously completed I-9 and, if the employee’s work authorization has not expired, you should note the date of rehire in Section 3 of the form and sign it. If the work authorization indicated on the initial form has expired, you need to reverify work eligibility by examining a document that reflects authorization to work, and note this in Section 3.
Recordkeeping and Retention
It is a good idea to keep I-9s in a separate folder, apart from personnel files
- Easier to maintain, and retrieve in the event of an audit
- Forms can include sensitive information (age, marital status) that shouldn’t be filed with other personnel information
If you keep copies of documents produced, attach them to the form.
You should have a tickler system for reverifications.
I-9s must be kept at least 3 years from the date of hire or one year after termination, whichever is longer. This means that you should have an I-9 form for all current employees who were hired after November 6, 1986. You should also have I-9 forms for terminated employees who were terminated within the past year or who were hired within the past three years.
Other laws may require longer retention of personnel records, but-in the event of an audit-you would not be required to produce I-9s for terminated employees if it is one year beyond their termination date and three years beyond their date of hire.
Knowledge That Employee Is Not Authorized to Work
Failure to complete the I-9 Form will be deemed constructive knowledge that the employee is not authorized to work, as will improper completion of the I-9 in certain cases (i.e., failure to sign the form).
Likewise, failure to reverify is deemed constructive knowledge.
If the employer has information available to it that would indicate the employee is not authorized to work, or if the employer uses contracted workers with a reckless and wanton disregard for whether the contractor hires unauthorized workers, the employer may be liable.
The employer may have a duty to inquire further, but there are many gray areas.
Note that a 1996 revision to the immigration laws provides that an employer’s request for more documents or refusal to honor tendered documents is not unlawful unless done for the purpose of or with the intent of discriminating against an individual on the basis of national origin or citizenship status. An employer still has to be very careful; don’t do it as a matter of course.
To avoid discrimination claims as well as potential liability for hiring an unauthorized worker, it is important to complete the I-9 forms fully. Do not specify which documents should be presented; also, do not make further inquiries based on an employee’s physical appearance, accent, or workplace rumors.
- $250 to $2,000 for first offense for national origin or citizenship discrimination for each worker.
- $100 to $1,000 for document abuse per worker.
Other remedies available for a claim of discrimination – the employer may be ordered to hire or reinstate the person or ordered to remove false performance reviews. The employer also could be liable for back pay and attorneys’ fees.
Persons or entities who engage in a pattern or practice of knowingly hiring unauthorized workers may face fines of up to $3,000 per employee and/or six (6) months’ imprisonment.
Other statutes may provide additional remedies; for example, federal and state anti-discrimination laws.
Compliance with I-9 requirements can establish a good faith defense to a charge of knowingly hiring an unauthorized alien, unless the government can prove actual knowledge of the unauthorized status of the employee.
- Make it clear to all applicants that they will need to comply with the I-9 requirements and provide proof of identity and work eligibility.
- Have one or two people responsible for I-9 processing; make sure they understand the deadlines, the correct way to complete the form, and the reverification process.
- Include the I-9 Form on your new hire orientation checklist.
- Complete the form fully and within the time requirements. Make sure the employee and employer representative both sign and date the form.
- Do not ask for more documents than are required, or express a preference for certain documents.
- If you keep copies of documents, be consistent. Also, do not copy more documents than necessary for completion of Section 2 of the form.
- Keep I-9s in a separate folder rather than in personnel files; keeping them chronologically by year may be easiest for review.
- Conduct periodic reviews of the I-9 Forms; remove old ones, check for errors and make corrections, and make sure reverifications are done.
- Immigration law and compliance can be tricky; if there are questions as to the validity of a document or an individual’s work status, contact counsel.