By Jenifer M. Pinkham, Esquire
The U.S. Citizenship and Immigration Services (USCIS) has issued a revised and updated Employment Eligibility Verification Form (I-9). To comply with the law, you must verify the identity and employment eligibility of each person you hire, complete and retain a Form I-9 for each employee, and refrain from discriminating against individuals on the basis of national origin or citizenship. All employers are required to complete a Form I-9 for each employee hired in the United States.
The revision seeks to achieve full compliance with the document reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which reduced the number of documents employers may accept from newly hired employees during the employment eligibility verification process. The revised Form I-9 is a further step toward reducing the number of documents used to confirm identity and work eligibility.
Key to the revision is the removal of five documents for proof of both identity and employment eligibility. They include: (1) Certificate of U.S. Citizenship (Form N-560 or N-570); (2) Certificate of Naturalization (Form N-550 or N-570); (3) Alien Registration Receipt Card (Form I-151); (4) the unexpired Reentry Permit (Form I-327); and (5) the unexpired Refugee Travel Document (Form I-571). The forms were removed because they lack sufficient features to help deter counterfeiting, tampering, and fraud.
Additionally, the most recent version of the Employment Authorization Document (Form I-766) was added to List A of the List of Acceptable Documents on the revised form. The revised list now includes: a U.S. passport (unexpired or expired); a Permanent Resident Card (Form I-551); an unexpired foreign passport with a temporary I-551 stamp; an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.
The Form I-9 helps employers to verify individuals who are authorized to work in the United States. The form must be completed after an employee is hired and within three business days of the date employment begins. The law requires employers to: (1) ensure that the employee(s) fill out Section 1 of the Form 1-9 when they start to work; (2) review document(s) establishing each employee's identity and eligibility to work; (3) properly compete Section 2 of the Form I-9; (4) retain the Form I-9 for 3 years after the date the person begins work or 1 year after the person's employment is terminated, whichever is later; (5) upon request, provide Forms I-9 to authorized government officials or agencies for inspection.
If an employer properly completes the Form 1-9 and the Department of Homeland Security subsequently discovers that the employee is not actually authorized to work, the employer cannot be charged with a verification violation because it will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien, unless the government can show that you had knowledge of the unauthorized status of the employee. As for the authenticity of documents presented to the employer, the employer must examine the document(s) and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. Also, employees must present original documents, no photocopies.
If you are self employed, you do not need to complete a Form I-9 unless you are also an employee of a business entity, such as a partnership, corporation or limited liability company, in which case the entity is required to complete a Form I-9 as specified above. You do not need to complete a Form I-9 for persons who are: (1) hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times; (2) employer for casual domestic work in a private home on a sporadic, irregular or intermittent basis; (3) independent contractors; or (4) providing labor to you who are employed by a contractor providing contract services (workers from temporary agencies).
To avoid discriminating against prospective employees, make sure to treat all applicants equally when recruiting, interviewing and hiring and when verifying employment eligibility and completing the Form I-9. Also, allow employees, regardless of national origin or immigration status, to choose which documents or combination of documents they want to present from the Lists of Acceptable Documents on the back of the Form I-9. Employers should NOT set different employment eligibility verification standards because of national origin or immigration status, and should not request to see employment eligibility verification documents before hire or completion of the Form I-9 because someone looks or sounds "foreign" or because someone states that he or she is not a U.S. citizen. Employers should NOT refuse to accept valid employment eligibility document(s) or refuse to hire an individual because a document has a future expiration date, nor should employers limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law, regulation or federal, state or local government contract.
There are civil and criminal penalties associated with violating this law, as a result, make sure you follow the simple steps to avoid possible infractions. The revised form is available online at www.uscis.gov. If you have any questions, please feel free to contact Attorney Jenifer Pinkham at 781-848-5028 or jpinkham@sabusinsesslaw.com.