Hanishi Ali

Understanding I-9 compliance has become ever important for employers as the federal government is cracking down on illegal hiring and I-9 violations.

All employers are required by legislation to verify the identity and employment authorization of each employee they hire for employment in the United States after November 6, 1986, including citizens and nationals of the United States, as well as, Canadians or Mexicans who entered the United States under the North American Free Trade Agreement.

This requirement of employment verification applies to all employers/ business owners, whether or not, an employer hires a foreign employee or files a visa application on behalf of the hired employee. The following are changes employers can expect in the revised Form I-9, which is likely to come into effect on April 3, 2009.

What is a Form I-9, who must complete it, and what are the employer’s retention obligations?

The Form I-9 helps employers to verify that the individuals they hire are authorized to work in the United States. An employer is required to complete a Form I-9 for every new employee hired and prohibited from using the I-9 process to screen job applicants.

Employers are required to do the following:

• Ensure that employees complete Section I of the Form I-9 on the day they start to work. Section I includes biographical information on the employee including employee’s authorized status to work in the United States, such as U.S. Citizen, permanent resident, non-citizen, or authorized to work under another status
  
• Review original documents establishing each employee’s identity and eligibility to work
  
• Complete and sign Section 2 of the Form I-9 which includes examination and verification of the documents, establishing identity and eligibility to work, presented by an employee
  
• Retain the Form I-9 for three years after the date the employee begins to work or one year after the person’s employment is terminated, whichever is later.
  
• Provide, upon request, to authorized officers of the Department of Homeland Security, the U.S. Department of Labor, or the Office of Special Counsel for Immigration Related Unfair Employment Practices for inspection.

Employers do not need to complete a Form I-9:

• If an employee was hired before November 7, 1986
  
• For volunteers who receive no remuneration for their services
  
• Independent contractors
  
• Persons transferring within a company
  
• Employees rehired by a company within three years of completing the Initial Form I-9
  
• If an employee is providing domestic services in a private household that are sporadic, irregular, or intermittent.

What are the anti-discrimination and document abuse provisions?

It should be noted that anti-discrimination provisions prohibits employers from four types of unlawful conduct: citizenship or immigration status discrimination; national origin discrimination; unfair documentary practices during the Form I-9 process; and retaliation.

Also, employers cannot refuse to hire persons because their employment authorization is temporary or because of an existence of a future expiration date.

What are main differences between the current Form I-9 and revised Form I-9?

The most significant change to the revised Form I-9, besides making technical updates, is going to be the requirement that all documents presented during the Form I-9 completion process be unexpired in order to establish identity and work authorization.  So if for instance a document, such as a social security card, does not contain an expiration date, it is considered unexpired.

Two documents have been added to List A (documents that establish both identity and employment authorization) on the List of Acceptable Documents: A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp; and a passport from the Federated States of Micronesia or the Republic of the Marshall Islands with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and these entities

Three documents were removed from List A of the List of Acceptable Documents: Form I-688, Temporary Resident Card; Form I-688A, Employment Authorization Card; and Form I-688B, Employment Authorization Card. The above three documents have been removed from List A because they are no longer issued and have now expired.

What version of the Form I-9 should employers use until the revised Form I-9 takes effect?

Employers can continue to use the current edition of the Form I-9, dated 06/05/2007, until the revised Form I-9 comes into effect.

Once the revised Form I-9 comes into effect, can an employer accept documents that used to be on the older version of the Form I-9?

No, employers will only be able to accept documents that are on the List of Acceptable Documents on the revised Form I-9.

As far as re-verification of employees where the employment authorization has expired is concerned, employers must use the revised Form I-9 and not re-verify an employee by completing Section 3 of the outdated Form I-9.

What are the penalties/sanctions for I-9 violations?

Employers can face stiff penalties, including fines, debarment from competing for government contracts, criminal prosecution, and seizure of company assets to gain compliance.

Violations can include knowingly employing illegal aliens or even failure to properly maintain I-9 documents on employees.

Hanishi Ali is an immigration attorney at Mithras Law Group, a Boston based immigration and international business law firm, which focuses on U.S. and U.K. immigration law. She can be reached at (617) 500-3233 or at www.mithraslaw.com. The firm has a blog at: http://immigrationinfo.wordpress.com.