I prepared this material for a presentation this week at the Northwest Regional Conference for…
Running a business comes with a lot of paperwork. Businesses have to worry about licenses, taxes, rules and regulation. But did you know that businesses are also required to screen their employees for valid immigration status? More specifically, businesses are required to ensure that each and every employee has documentation that they are authorized to work in the United States. This post explains the importance of understanding the required form, and the importance of creating strict protocols to ensure your business stays in compliance.
What is the I-9 form?
The Form I-9, Employment Eligibility Verification is provided by U.S. Citizenship and Immigration Services (USCIS). It is freely available online for download. The I-9 form is used to screen new hires for valid work authorization status in the United States. USCIS also provides detailed, free instructions for properly completing the Form I-9. Let’s cover some frequently asked questions about the employment verification form.
1. When do I complete the I-9?
The Form I-9 needs to be completed within three days of hiring a new employee. (See below for a description of who fills out what portions of the I-9). That means that the form needs to be completely – and properly – filed out and saved on file with the employer. The employer is not required to file the employment verification form with any government agency.
Note that the employee‘s portion of the I-9 should be completed only after s/he has accepted a job offer. For this reason employers should not ask applicants to fill out the I-9 form at the time they apply for a job.
2. Who fills out the I-9?
There are two different sections on the Form I-9 – one for the employee and one for the employer. Section 1 of the employment verification form is completed by the employee. Section 1 asks for basic biographic information about the employee, and requires the employee to certify how s/he is authorized to work in the U.S. (e.g., because she is a citizen). If the employee has challenges with the English language s/he my be assisted by a translator/preparer. If this is done then that individual needs to sign in the appropriate box on the bottom of the form. Although it is the employee who fills out Section 1, the employer is responsible for ensuring that the form is fully completed.
Section 2 of the Form I-9 must be completed by the employer. The purpose of Section 2 is to require the employer to physically inspect the original document or documents that show the employee is legally authorized to accept work in the United States. The employer must certify which document(s) have been inspected, and list details from those documents.
3. What document(s) show employment authorization?
There are a long list of documents that can potentially show that an individual is authorized to work in the United States. These documents come in three categories:
- “List A” documents. These prove both an individual’s identity and that s/he is work authorized in the United States. A U.S. passport is an example of such a document.
- “List B” documents. These prove only an individual’s identity but not that s/he is work authorized. A standard driver’s license is an example of a List B document.
- “List C” documents. These prove only that an individual is authorized for employment but do not establish the individual’s identity. A Social Security Card is an example of a List C document.
For the full lists of A, B and C documents see the bottom of this post. Only original documents may be submitted, and they must not be expired. Employers are allowed to keep copies of the documents for their own record, and doing so is typically best practice. But if you keep copies for some employees you must do if for all employees. Otherwise the employer risks violating anti-discrimination rules.
4. Why do I have to complete the I-9?
Short answer – because it’s the law. In 1986 Congress passed legislation requiring U.S. employers to verify the employment authorization of their new hires. The precise rules have changed over time, but the bottom line is that it’s employer’s responsibility, period. More to the point, there can be enormous fines for failing to properly screen new hires with the Form I-9. More on that below.
5. What if an employment authorization document will expire in the future?
Do not assume that an individual will no longer be able to work in the future simply because his/her work authorization card is set to expire. As just once example, green card holders (lawful permanent residents) typically have cards valid for ten years, but these may be renewed indefinitely for the rest of the individual’s life. The employer should not assume that an expiration date means the person will lose employment authorization in the future. Moreover, the employer could be found to have discriminated against an applicant if s/he is questioned about an expiration date, since this could show national origin discrimination. For those with Employment Authorization Documents (EADs), the employer must re-screen the individual no later than when the card expires. But for US citizens and permanent residents that is not required.
6. What happens after I complete the I-9?
Employers are not required to file the Form I-9 with any government agency. Rather, the employer is required to keep the I-9 as long as the new employee works at the business. The employer may maintain either a paper or electronic copy of the form. The records need to be maintained until either three years from the employee’s date of hire or one year from the date of termination – whichever is later. The business may keep the I-9 onsite or in off-site storage, but must be able to provide it on request to the Department of Homeland Security within three business days.
Violating the I-9 compliance rules can be extremely expensive.
A business can face steep civil and even criminal penalties for violating I-9 compliance rules. “Knowing” violations, where a business has actual knowledge that an employee was unauthorized, carries the following penalties.
|Civil Violations||First Offense||Second Offense||Third Offense|
|Hiring or continuing to employ a person, or recruiting or referring for a fee, knowing that the person is not authorized to work in the United States||$375 for each worker||$3,200 for each worker||$3,200 for each worker||$6,500 for each worker||$4,300 for each worker||$16,000 for each worker|
|Failing to comply with Form I-9 requirements||$110 for each form||$1,100 for each form||$110 for each form||$1,100 for each form||$110 for each form||$1,100 for each form|
|Committing or participating in document fraud||$375 for each worker||$3,200 for each worker||$3,200 for each worker||$6,500 for each worker||$3,200 for each worker||$6,500 for each worker|
|Committing document abuse||$110 per violation||$1,100 per violation||$110 per violation||$1,100 per violation||$110 per violation||$1,100 per violation|
|Unlawful discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee||$375 per violation||$3,200 per violation||$3,200 per violation||$6,500 per violation||$4,300 per violation||$16,000 per violation|
On top of civil fines, the Department of Homeland Security can refer certain violations for criminal prosecution. Those violations carry yet further fines and even imprisonment:
|Criminal Violations||First Offense||Second Offense||Third Offense|
|Engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens||Up to $3,000 for each unauthorized alien||Up to $3,000 for each unauthorized alien||Up to $3,000 for each unauthorized alien|
|Up to 6 months in prison for the entire pattern or practice||Up to 6 months in prison for the entire pattern or practice||Up to 6 months in prison for the entire pattern or practice|
Even if the employer did not knowingly hire an unauthorized worker, the business can be fined for technical violations. In other words, if the business simply improperly complete the I-9 form, that itself can be subject to fines. These fines are substantially lower than knowing violations, but can add up to a very large figure for an entire workforce. In July 2015 for example, the Office of the Chief Administrative Hearing Officer (OCAHO) issued its largest fine to date – just over $600,000. Again, this was merely for improperly completing the paperwork, not for knowingly hiring unauthorized workers.
The flip side – too much scrutiny can be a bad thing
After learning about the stiff fines for failing to properly complete the I-9, some businesses may feel motivated to look very closely at the employment authorization of their employees. This intuition needs to be guarded very, very carefully. The problem? Well-intentioned employers may engage in conduct that runs afoul of anti-discrimination laws. For example, an employer can rack up such a violation by asking a new hire whether s/he is a U.S. citizen, or questions about his/her specific immigration status. These anti-discrimination laws are enforced by both the DOJ’s Civil Rights Division and the Equal Employment Opportunity Commission (EEOC(. Any treatment of new hires and employees that seems to single out foreign nationals over perceived U.S. citizens could set an employer up for prosecution.
Employers need to understand that “document abuse” during the I-9 process is a form of unlawful discrimination. Businesses may be sanctioned if they treat some employees differently in the I-9 screening process. Problems arise where the business places increased scrutiny on particular individuals, perhaps because the employer suspects the person may not be in authorized immigration status. Violations can occur if the business asks for specific types of documents (e.g., a “green card”) rather than simply requesting the employee provide any rule-compliant document. Likewise a violation can occur if the business requests more documents than are strictly required under the I-9 A, B and C lists (see above), or if the employer improperly rejects a proffered document as not genuine.
So what should a business do?
All businesses should implement a formalized I-9 compliance policy. Doing so doesn’t involve moving mountains, but does require some basic care and attention to details. Some basic elements of an appropriate compliance program include the following:
- Advertising and recruitment for new positions. Businesses need to ensure that no representations made in their marketing and recruitment process run afoul of anti-discrimination rules.
- All steps of applicant screening and interviewing. The employee on-boarding process needs to be structured to ensure that it doesn’t improperly discriminate on a prohibited basis.
- Completion of the Form 1-9 and review of supporting records. Critically, key staff need to be trained on how to complete the I-9 with full accuracy, as even technical errors result in substantial fines.
- Purging forms at expiration of mandatory retention periods. Businesses should pro-actively purge I-9s once an individual employee file is past the mandatory retention period. Nothing is gained by “over compliance” and the business risks fines for technical errors on extraneous forms.
- Periodic spot checks of 1-9 records to evaluate compliance. Technical errors on the I-9 are common, even when completed by trained employees. For this reason businesses should schedule periodic reviews to check technical compliance on their I-9s.
- Review of contracts with service providers to ensure a would-be contractor is not actually an employee requiring an I-9. Whether a given individual is an employee or independent contractor can, of course, be a complex matter to determine. But to comply with I-9 requirements a business has additional incentive to ensure that a contractor will not later be determined to be an employee, in which case the business can be subject to I-9 violations.
- Periodic review of the 1-9 policy. Best practices for I-9 compliance evolve, so businesses should review their policies on at least an annual basis.
Documents for verifying employment authorization and identity
The following are the current list of accepted documents for establishing employment authorization and identity for purpose of the I-9 form. Examples of these documents can be found here.
List A – Identity and employment authorization
- U.S. Passport or Passport Card.
- Permanent Resident Card or Alien Registration Receipt Card (Form I-551).
- Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
- Employment Authorization Document (Card) that contains a photograph (Form I-766).
- In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form.
- Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.
List B – Identity only
For individuals 18 years of age or older:
- Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address.
- ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address.
- School ID card with a photograph.
- Voter’s 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.
- Driver’s license issued by a Canadian government authority
For persons under age 18 who are unable to present a document listed above.
- School record or report card.
- Clinic, doctor, or hospital record.
- Day-care or nursery school record.
List C – Employment authorization only
- A Social Security Account Number card unless the card includes one of the following restrictions: (1) not valid for employment authorization; (2) valid for work only with INS authorization; (3) valid for work only with DHS authorization note.
- Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545).
- Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350).
- Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing 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).
- Employment authorization document issued by DHS.