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I-9 Forms: What Your Company Should Know About Immigration.
August 1st, 2008
With little attendant fanfare, Congress, in both 1986 and again in 1990, significantly expanded employer accountability for enforcing federal immigration law by imposing substantial penalties upon employers for knowingly hiring individuals who are not legally authorized to work in the United States.
Specifically, upon the enactment of the Immigration Reform and Control Act of 1986 and the Immigration Reform Act of 1990, Congress delegated the task of verifying that employees are authorized to work in the
First, the verification procedure dictates that that the employer verifies the identity and authorized status of each employer. The employer may accomplish this by reviewing the original identity and employability documents provided by the employee. The current I-9 form provides a list of an assortment of documents that operate to establish these criteria (e.g. a state issued driver’s license, a social security card, a passport, etc.).
It should be noted here that applicable federal law prevents an employer from specifying which document(s) they will accept from an employee as such a request may constitute implicit discriminatory. Further, the refusal to hire an individual because of the observance of a future expiration date on a document he or she has presented may also constitute illegal discrimination
Second, the verification process must be documented by the completion of a current I-9 form (a link to the current I-9 form in pdf format is provided at the conclusion of this article). The top third of the I-9 form is completed, signed and verified by the employer. This leaves the bottom two-thirds of the document for the employer to fill in. The form mandates that the employer list the title, issuing authority, number (if applicable) and expiration date (if any) of the documents examined when determining identity and work eligibility. The employer must also state the date the employee began working for the employer. Finally, the I-9 provides for the employer to verify, under penalty of perjury, that he or she has examined the documents proffered by the employee and that the documents, on their face, appear to be genuine. An employer may not knowingly accept, possess or procure any forged, altered or counterfeit document offered by an employer during the process of completing the I-9.
Federal law requires an employer to maintain a fully completed I-9 for all current employees. An employer must retain the I-9 of a former employee for at least one (1) year if the employee worked for the employer for more than one year. If a former employee worked for employer for less than one year, the employer must retain the I-9 for three (3) years.
The laws referenced above subject an employer to a range of monetary fines for non-compliance with the I-9 process based upon the number of previous infractions by that specific employer. Typically, the only viable defense to such a charge is that the employer did not possess actual or constructive knowledge of the employee’s unauthorized employment status. Ignorance of the law is not a defense.
The attorneys at KMBSP have substantial experience in working in tandem with employers to assist in making sure a company has the proper procedures in place for correctly completing its I-9 forms. Further, the attorneys at KMBSP have undertaken a number of audits, both internally and externally initiated, of an employer’s I-9 forms and files to certify legal compliance. KMBSP has also worked with a number of employers to both develop and institute a formal handbook specifying that company’s procedures and policies regarding the I-9 process. If you have a question about I-9 compliance, we encourage you to contact us. The attorneys at KMBSP have handled a number of I-9 related issues over the years and invite you to utilize their professional services to help with your specific needs.
I-9 Form: http://www.uscis.gov/files/form/I-9.pdf