In November 2007, the Federal Register published a new form I-9 and I-9 Handbook, offering employers an easier solution to employment eligibility verification. Employers must use the new form I-9 for all newly hired employees. As of December 26, 2007, businesses can be fined for not using this revised form. It is not necessary to use the new I-9 form for prior hires unless employers are recertifying an expired document.
What Is the Law?
The main law governing I-9 forms is the Immigration Reform and Control Act of 1987. It is nicknamed IRCA and was designed to preserve the tradition of legal immigration. It places the burden of verifying the right to work and employee identity on the employer.
There are two areas of caution placed upon businesses under IRCA.
- There are penalties if you do not verify the right to work and identity or if you knowingly hire those workers who are not legal immigrants, but
- There are serious ramifications to the overzealous employer who attempts to discriminate on the basis of compliance with an I-9, including lawsuits.
The following are five easy steps that can help businesses stay compliant with I-9 forms without overstepping the boundaries of the law. Follow these steps, and your company will be closer to maintaining a healthy balance between proper verification of identity while avoiding possible discriminatory actions.
- Name an I-9 manager and have a policy — Have one person or one department in charge of the I-9 process. Develop and assure compliance of this policy including all steps listed below. If possible, all new hires should report to the I-9 manager or department on the first day of work. Periodically check in and be sure the policy is followed. The consistent backing of upper management is essential for a best practices policy to be implemented.
- Use employment applications to state that you mandate I-9 completion — Your policy should include the use of employment applications that specifically detail completion of an I-9, which must be done within three days of hire. Remind new employees of this at the time an offer is extended or in an offer letter. Do this consistently so there is no hint of discriminatory conduct.
- Complete I-9 forms on time — Your policy must assure that I-9 forms are properly completed and done on time. IRCA demands that Section 1 be completed and signed by the new hire no later than the first day of work. It can be done a little earlier but certainly not before an offer of employment is extended or the policy may be considered discriminatory.
- Terminate new hires who do not provide I-9 documents by the third day — Your policy should state and consistently enforce that any new employees who cannot produce the documents to properly complete an I-9 within three days will be terminated.
- Follow-up and retain properly — Your policy should clearly detail the follow-up, storage, and proper destruction of I-9 forms.
All I-9 forms should be stored in locked confidential file cabinets — not in the employee personnel files. This makes things much easier if there is an audit and keeps sensitive information out of personnel files. You may also store I-9 forms electronically and accept electronic signatures.
Employees who have temporary work authorization should be reminded in writing at least 90 days in advance of the need for them to present updated documents. Those I-9 forms should be recertified using a new I-9 form. Employees with temporary documents who fail to provide updated forms should be terminated when those expire. Again, all of this should be detailed in your policy and administered consistently by your designated I-9 manager.
Remember that I-9 forms must be retained for three years after the date of hire or for one year after termination of employment, whichever is later.
I-9 managers must examine the document(s) provided for I-9 verification. If they appear to be genuine, they must be accepted. However, if the documents appear to be questionable, you may state in what ways they do not appear correct and not accept them.
Rather than risk the entire exposure of verification of I-9 forms, you may enroll in the U.S. Citizenship and Immigration Services (USCIS) sponsored database system called E-Verify. After your business is enrolled, E-Verify electronically completes and verifies the identity through the Social Security Administration and USCIS database for each new hire. (In Arizona, there is a law currently under review that mandates that all Arizona employers use E-Verify, but there is a lawsuit pending.)
If you get a letter from the Department of Homeland Security to audit your I-9 forms, be sure to comply. The letter may come from the USCIS or the United States Immigration & Customs Enforcement (ICE).
For more information, please visit the USCIS website (www.uscis.gov).
About the Author
Ruth Storrings is SPHR at AlphaStaff Group, Inc., a human resources outsourcing organization (HRO) that provides HR services including benefits, HR counseling, and training to small and mid-sized businesses. For additional information, please call 1 (888) 335-9545 or visit www.alphastaff.com.