I9 Form: The Devil is in the Details

Most employers know that having their employees complete an I9 form is a requirement and part of the new hire process, but many don’t realize the importance of the details and accuracy in the process. The Immigration Reform and Control Act of 1986 established the use of the I9 form. Since then, there have been some revisions. The Federal government is cracking down on I9 compliance and there is a plan in place through 2014 targeting employers for both civil and criminal enforcement.

Establishing proper I9 compliance will keep companies from potential liability and keep violations at bay. Use the following tips to ensure you are following the most current guidelines when hiring, or rehiring, an employee.

  • Be sure you are providing employees with the correct form (www.uscis.gov/i-9)
  • You must provide employees with the I9 form, including instructions and lists of acceptable identification documents, on or before the employee’s first day of work
  • You should ensure the employee completes and signs Section 1 of the form no later than h/her start date
  • Employers cannot specifically request a social security number from the employee unless the employer is registered and using E-Verify
  • All addresses must be physical addresses, not a P.O. Box
  • The new employee has 3 days from his/her start date to provide the necessary forms of identification (count day 1 as the employee’s documented first day of work)
  • Employees who indicate they are “aliens authorized to work in the United States” should specify their status and classification on the form
  • The employee chooses which documents to provide (employers often specify which pieces of identification to bring, this is an incorrect practice)
  • If an employee provides a List A document, the employer should not request (or record) further documents from List B or List C
  • Employers registered for E-Verify must, when presented with document from List B, require one with a photograph
  • Employers are required to review unexpired, original documents to compare to information listed in Section 1 and to confirm they look genuine (employers can reference pictures found in USCIS’ Handbook for Employers (M-274) or guide to Selected US Travel and Identity Documents (M-396)
  • When an employee’s work authorization expires, the employer must re-verify his/her employment eligibility. If Section 3 has already been used, use a new I9 form; writing the employees name in Section 1 and then completing Section 3. Attach the new form to the original I9
  • Section 3 can also be used when rehiring an employee within 3 years of his/her departure date
  • An employer may accept a receipt in lieu of a document from List A, B or C if the receipt is for a replacement of a lost, stolen or damaged document. The receipt is only valid for 90 days and cannot be accepted if employment is to last less than 3 days
  • The Immigration Reform and Control Act allows, but doesn’t require, employers to copy the I9 documents. If an employer chooses to do so, it must make copies of all employee identification documents. Copies should be kept attached to the I9 form.

Employers should conduct regular internal audits of their files and I9 documents.  If you find forms that are incomplete or incorrectly filled out, take the necessary steps to fix it. Do not back date any corrections, instead conspicuously initial and date changes.

If Section 1 is incomplete or incorrectly filled out, the employee must sign and date the correction. If you discover an employee working without authorization, the employer must suspend or terminate the employee (we always suggest you consult your attorney before taking any action).

Employers need to educate their managers on the legal aspects of this process and embrace the HR practices that are set up to protect and ensure things are done correctly. Taking time to do this process correctly is important. Consistency and accuracy are key.

Source: HR Magazine February 2011

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