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Introduction

Most employers think that because they have never filed an immigration case for a foreign worker, that they do not need to worry about their I-9’s or immigration laws. This type of thinking in today’s enforcement climate, is indeed risky business.

What most employers do not understand is that employment verification requirements are governed by the Immigration Reform and Control Act of 1986 (“IRCA”). The provisions of the law hold every employer in the USA responsible for verifying the identity and work authorization status of the employees that they hire. The means by which this is done is the I-9 Employment Eligibility Verification Form that every employee must fill out on the day of hire or earlier (both citizen and non-citizen).

Recent developments and headline news of the US government performing widespread investigations and audits of employers have created a sense of urgency and heightened awareness to be more compliance conscious. Federal and state laws have broadened the requirement to participate in E-Verify – a computerized employment eligibility verification program. A myriad of other compliance obligations related to eligibility verification have also been imposed on employers, while at the same time exposing them to possible discrimination charges by going through the process of verifying their employees’ work eligibility.

Plain and simple, failing to comply with IRCA’s I-9 rules have, and are continuing at a rapid rate, to result in significant fines, loss of access to government contracts, an onslaught of negative publicity, business closure, criminal penalties and even imprisonment.

What is the I-9 Form

This 2-page form is accompanied by a lengthy and detailed 70+ page Handbook for Employers. However, on its face, it seems quite simple to fill out. Without the knowledge and understanding of the importance this so-called 'simple' form is playing in the enforcement era in which we find ourselves, most HR reps that are charged with the responsibility of processing I-9 forms, merely give it a superficial glance.

The I-9 Employment Eligibility Verification Form is a 2- page form employees complete verifying their identity as well as proving they are allowed to work in the United States. Employers are required by law to maintain for inspection original Forms I-9 for all current employees. In the case of former employees, retention of I-9 Forms are required for a period of at least three years from the date of hire or for one year from the date of termination, whichever is longer. These forms can be retained in paper, microfilm, microfiche, or electronically.

The I-9 Form is a 3-part document and each section requires specific information, as follows:

• Section 1 includes basic biographical information on the employee and also asks the employee to certify that he or she is a citizen, permanent resident or authorized to work under another status.

• Section 2 is completed by an employer who must verify what documents an employee presents to prove their identity and right to work and that the I-9 paperwork was completed in a timely manner. The I-9 regulations list the types of documents that may be used to verify that a new hire is authorized to work in the U.S. These documents fall into one of three categories:

  1. LIST A Documents: Those that establish both the new hire's identity and employment eligibility.
  2. LIST B Documents: Those that establish identity only.
  3. LIST C Documents: Those that establish work eligibility only.

• Section 3 is reserved for employers who must periodically update the I-9 Form when it is necessary to update or re-verify an employee's work authorization document(s).

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List of Acceptable Documents

The employee presents – and the employer must verify - evidence of both identity and work authorization. List A documents establish both identity and work authorization.

Other documents establish only identity, List B documents. And other documents establish only employment authorization--List C documents.

The employee may present either a List A document OR a List B plus a List C document for I-9 employment eligibility verification.

We link to the list of acceptable unexpired documents here.

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Penalties and Fines

The penalties for ignoring the legal requirements of the I-9 process can be quite severe, even in cases of unintentional omissions and uncorrected I-9 mistakes. Civil penalties for such errors may range from $110 to $1,100 for each affected employee. A business with thousands of employees and multiple worksites may face a significant financial burden in noncompliance penalties. The fines may be further increased if the Department of Homeland Security (DHS) determines that an employer knowingly hired unauthorized foreign nationals, and can range from $375 to $16,000 per violation with repeat offenders on the high end. Employers and their representatives convicted of having engaged in a pattern or practice of knowingly hiring unauthorized foreign nationals, may also face criminal charges and fines of up to $3,000 per employee and/or six months’ imprisonment. Other federal criminal statues may provide higher penalties in certain fraud cases.

Employers and individuals who commit citizenship status or national origin discrimination may be ordered to pay civil fines and attorneys’ fees. The penalties range from $375 to $3,200 for the first offense for each individual discriminated against; from $3,200 to $6,500 for the second offense; and for subsequent offenses, not less than $4,300 and not more than $11,000 for each affected person.

Avoid Discrimination in Recruiting, Hiring and Processing I-9 Forms

In practice, employers should treat employees equally when recruiting and hiring, and when verifying employment eligibility and completing Form I-9. Specifically, employers should note the following:

• Employers should never set different employment eligibility verification standards or require that employees present different documents because of their national origin and citizenship status. For example, employers cannot demand that non-U.S. citizens present DHS-issued documents; employees must be allowed to choose the documents they will produce from the lists of acceptable Form I-9 documents. For example, both citizens and work-authorized foreign nationals may produce a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment eligibility.

• Employers should never request employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that s/he is not a U.S. citizen.

• Employers should never refuse to accept a document—or refuse to hire an individual—because a document has a future expiration date.

• Employers should never request that an employee present a new unexpired employment authorization document (EAD) during reverification if s/he presented an EAD during the initial verification. For reverification, each employee must be allowed to present any document either from List A, B or C. Refugees and asylees may possess EADs, but they are authorized to work based on their status and may possess other documents that prove work authorization from List A, B or C to show upon reverification, such as an unrestricted Social Security card.

• Employers should never limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state or local government contract.

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