Alien Sightings

I-9 Compliance: Know the Rules

Mar 8, 2010 Aliens

If you have employees, you must have accurate I-9 records for every person hired after November 6, 1986. The purpose of this form is to determine if a new hire is eligible to work in the United States; it is not to determine if the person is a citizen. If a company is found to have missing or incorrect I-9 forms, penalties of $100-$1,000 can apply to each invalid record. Having your I-9s in order seems like simple process—and generally it is; but , at times complications and questions can arise. It is vital to meet all requirements while being aware of anti-discrimination rules.

The Basics

For each employee, an I-9 form must be completed within three days of the hiring date and held on file by the hiring company. If the employee is unable to furnish the needed documents, then he or she can be terminated. On the I-9 form there is a List A, which are documents that can establish both identity and authorization to work in the U.S. The employee only needs to furnish one of these items. If no items from List A are available, then one item from List B, which establishes identity only, and one item from List C, which establishes employment eligibility, must be provided.

Documentation: Valid or Invalid

Even if you believe that a new hire is an illegal alien, you may not require additional documentation—such as a green card. Any document that meets the I-9 list requirements is allowed. Your job is to determine to the best of your ability whether the provided documents are real or not and to then keep a record of each employee’s documentation. If the documents reasonably appear to be genuine, you must accept them. But , if you are having distress determining whether a document is valid, you may contact your local Immigration Service district office.

Exceptions

• Social Security Card with Exceptions: A social security card is an acceptable document as proof of work authorization—even from an alien—unless the card states “Not Valid for Employment” or “Valid for Work Only with INS Authorization.”

• Photocopied Documents: You may not accept photocopied documents; employees must provide original documents unless the document is a certified copy of a birth certificate.

• Lost or Stolen Documents: If a new hire is missing a document, the employee may submit a receipt for a replacement document. This must be presented within the first three days of employment. The employee then has 90 days to produce the actual document.

• Expired Resident Card of Current Employee: If a current employee’s resident card expires while under your employment, you do not have to re-verify this employee.

• New Hire Expired Documents: If a new hire submits either an expired passport or an expired driver’s license, this is acceptable. Keep in mind that expired or not, a driver’s license only establishes identity, so a document from List C must also be presented.

• New Hire’s Document Impending Expiration: If a new hire presents a document that will expire in the future, you may not refuse to hire this person even if you are hiring the employee on a permanent basis.

Keeping Your Records in Order

By law you are required to keep an employee’s I-9 form on file for either three years or one year after termination—whichever is longer. So if your company employed a person for five years, you must keep the I-9 form on file one year after the employee leaves—for a total of six years. But , if your employee leaves after only one year, you must keep the I-9 on file for two years after the employee leaves to meet the three-year minimum.

You are not required to photocopy documents presented with the I-9 form, but if you wish to do so for your record keeping, you may. If you do choose to make photocopies, you must do this for all new hires, not just those you suspect of being aliens—otherwise you can be charged for discrimination. In addition, you may not use the photocopies for anything other than filling with your I-9 forms.

While this article covers the basics and several exceptions of I-9 compliance, companies still may run into complications or questions from time to time. Remember that you only have three days upon hiring a new employee to complete the I-9 form, so having a go-to business law attorney can be essential when questions arise.

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Tags: Compliance, Know, Rules