HOW TO COMPLY WITH I-9 REQUIREMENTS

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1 HOW TO COMPLY WITH I-9 REQUIREMENTS U.S. Immigration and Customs Enforcement (ICE) has instituted an aggressive enforcement campaign targeting employers suspected of employing unauthorized workers in violation of the Immigration Reform and Control Act. The new enforcement efforts involve increased inspections by ICE that begin with the issuance of a subpoena requiring employers to produce I-9 forms for all current employees and for those employees terminated within the past year. The ICE subpoena has also gone so far as to request all U.S. Social Security Administration (SSA) Employer Correct Requests and Requests for Employee Information letters (aka no match letters) received in the prior three calendar years, sometimes pursuant to a request for a company representative to appear and submit to examination under oath with respect to such letters. Although there is a question regarding the enforceability of these new ICE subpoenas, the increased enforcement efforts of ICE are real. It is vitally important for employers to ensure their compliance with immigration laws given the increase in ICE enforcement efforts. Under the current immigration laws, employers are required to verify all their employees work eligibility using an official government form, the I-9. Failure to properly complete and maintain I-9 forms can result in civil penalties ranging from $100 to $1,100 for each violation. It is recommended you act now to avoid this potential liability. Among the steps you can take to avoid liability is to conduct an internal audit of your I-9 documents to ensure you have an I-9 form for each of your employees and the I-9 form is properly completed. -1-

2 I-9 COMPLIANCE/2 Proper completion of the I-9 form begins with an understanding that as of Dec. 7, 2007, employers are required to use a new version of the I-9 form. The new form puts into practice the reduction of the number of documents that had been technically required since Employers are required to complete an I-9 form for each employee at the time of hire. This requirement applies regardless of whether the new hire is a U.S. citizen or foreign national. The only exception to this rule is that you are not required to complete an I-9 form for your true independent contractors. Section 1 of the I-9 form is to be completed by the employee or by an individual on behalf of the employee. Section 1 must be completed at the time of hire, which is the actual beginning of employment. The employee is required to provide all information listed in Section 1 except for his or her Social Security number. With the new I-9 form, the employee is not required to provide his or her Social Security number unless the employer is participating in the federal E-Verify program (formerly known as the Basic Pilot program). If the employer is participating in the E-Verify program, the employee must provide his or her Social Security number when completing Section 1 of the I-9 form. If Section 1 of the I-9 form is completed by someone other than the employee, that individual must complete the Preparer/Translator Certification within Section 1 of the I-9 form. In any event, the employee must also sign Section 1 of the form. Despite the fact that the employee completes Section 1 of the I-9 form, the employer has ultimate responsibility to ensure Section 1 is completely properly and in a timely manner. Consequently, when the form is handed to the employer for purposes of completing Section 2, the employer should first verify that Section 1 has been completed correctly and in its entirety

3 I-9 COMPLIANCE/3 In this regard, there is one common error that appears in Section 1 of the I-9 form when completed by a permanent resident alien. Section 1 of the I-9 form requires the employee to identify himself or herself as either a U.S. citizen or national, a lawful permanent resident, or an alien with temporary work authorization by checking the appropriate box. The box for aliens with temporary work authorization also has a space for the employee to write in the expiration date for his or her work authorization. Often, because the permanent resident alien card also has an expiration date on it (this expiration date has nothing to do with work authorization as permanent resident aliens have permanent work authorization and their work authorization status never needs to be reverified), these employees feel compelled to check the box for aliens with temporary work authorization because that is the only selection that asks for an expiration date. Rather, the expiration date on the permanent resident alien card does not appear anywhere on Section 1 of the I-9 form. The permanent resident alien is simply required to check the appropriate box and provide his or her permanent resident alien card number. Employers should, therefore, be sure permanent resident alien employees are not incorrectly identifying themselves as aliens with only temporary work authorization. Section 2 of the I-9 form is for confirming an employee s identity and work authorization status. Section 2 of the I-9 form must be completed within three days of the date employment begins. If employment is intended to be for three days or less, Section 2 of the I-9 form must be completed at the time of hire. Section 2 lists three categories of documents described as List A, List B and List C documents. List A documents verify identity and work authorization status. List B documents verify identity only, and List C documents verify work authorization status only. The law - 3 -

4 I-9 COMPLIANCE/4 requires employees to produce either one List A document or a List B and List C document. It is important to know you may not specify which documents the employee must present or require additional documents beyond those required by law. Under the new I-9 form, five documents have been removed from List A of the list of acceptable documents. Those documents are as follows: Certificate of U.S. Citizenship (Form N-560 or N-561); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (I-151); Unexpired Re-entry permit (Form I-327); and Unexpired Refugee Travel Document (Form I-571). One document was added to List A, the Unexpired Employment Authorization Document (I-766). Also, all the employment authorization documents with photographs in circulation are now included as one item on List A: I-688, I-688A, I-688B, I Employers can only accept unexpired originals of the documents produced for completing Section 2 of the I-9 form. Although an employer is not required to verify the authenticity of the documents produced, the employer is required to examine the documents and attest the documents appear reasonably genuine on their face. The employer is held to a standard of good faith. If there is a question regarding the authenticity of the document(s) presented, the employer may ask the employee to present a different document allowed for I-9 purposes. For each document produced by the employee, the employer is required to record the document title, the issuing authority, the document number, the expiration date (if any) and the date employment begins. After the documents have been produced, the employer representative who reviewed the documents produced must then sign and date the certification within Section 2. Often, an employee is unable to produce a required document for Section 2 and instead - 4 -

5 I-9 COMPLIANCE/5 produces a receipt showing application has been made for a replacement document. In this scenario, the law allows the employer to accept the receipt, but the actual document must be produced within 90 days. This is commonly referred to as the Receipt Rule. (The Receipt Rule does not apply if the employer already has actual or constructive knowledge that the employee is not authorized to work.) Roofing contractors often ask whether they are required to keep copies of the documents employees produce for purposes of completing Section 2 of the I-9 form. The law does not require employers to keep copies of such documents. If employers choose to copy documents produced for purposes of completing Section 2 of the I-9 form, the law does require that the copies be stapled to the I-9 form. Section 3 of the I-9 form is for updating and reverifying employment eligibility. Employers must update the I-9 form when, for example, an employee has a name change. Employers are required to reverify the employment eligibility of those employees with only temporary work authorization and those employees who are rehired within three years of when the I-9 form was originally completed. The reverification process must be completed before the employee s work authorization expiration date set forth in Section 1 of the I-9 form. Block A of Section 3 of the I-9 form is to be completed for those employees who have changed their names. If, at the time the I-9 form is updated, an employee has not had a name change, Block A is left blank. If an employee is being rehired within three years of the date the I-9 form was originally completed, the employer has a choice of completing a new I-9 form or having the employee complete Section 3 of the I-9 form. If the employee being rehired within three years of his or her - 5 -

6 I-9 COMPLIANCE/6 last employment with the company had not had his or her work authorization expire, the employer is to complete only Block B of Section 3 and sign in the space provided. Block B is for identifying the date of rehire. If the individual being rehired had his or her work authorization expire since the form was originally completed, both Blocks B and C of Section 3 of the I-9 form must be completed. Block C is for reverifying work authorization status. Block C must also be completed if any current employee s work authorization is about to expire. When completing Block C of Section 3 of the I-9 form, the employer is required to examine any document that reflects that the employee is authorized to work in the U.S. These documents are the documents provided under List A and List C in the List of Acceptable Documents attached to the I-9 form. Similar to how Section 2 of the I-9 form is completed, the employer records the document title, document number and expiration date (if any) in Block C and signs the attestation provided at the end of Section 3. Once the I-9 form is completed, the law requires the employer to keep the I-9 form in its records for a period of three years or one year after the employee is terminated, whichever is longer. So, for example, if you have an employee who worked for you for one year and was then terminated, you must hold that employee s I-9 form for two years. Or, for example, if you have an employee that worked for you for five years and then left the company, you only have to maintain that employee s I-9 form for one year following the date of termination of the employment relationship. Proper completion if the I-9 form avoids the penalties associated with I-9 paperwork violations. The fines range from between $110 and $1,100 per individual. These fines can be avoided by the employer who exhibits a good-faith attempt to comply with the I-9 form - 6 -

7 I-9 COMPLIANCE/7 requirements. However, there is no possibility of raising the good-faith defense if the employer has not completed an I-9 form. # # # - 7 -