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5 common I-9 mistakes

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in FMLA Guidelines,Human Resources

by Montserrat Miller

It is remarkable that a seemingly simple, one-page form—the Form I-9—can cause so many headaches. But who ever said a government form was easy, much less an immigration-related form.

A quick primer: The Employment Eligibility Verification form is meant, as its title describes, to verify the employment eligibility of an employee through his or her identity and work authorization documents. The form must be completed and maintained for all employees (citizens and noncitizens), and employers must have an I-9 for all employees hired after Nov. 6, 1986.

Completion of the Form I-9 is mandatory, unlike participation in the E-Verify program, which is only mandatory in certain situations (e.g., federal contractors or Arizona employers).

Here are the most common mistakes employers make:

1. Using an outdated version of the I-9.
A new version was released last year. You’ll find an edition or revision date in the lower right corner of the form. Currently, the version with the date 08/07/09 is required, although the form with the date 02/02/09 is also accepted. To stay on top of this, check the U.S. Citizenship and Immigration Services web site regularly to ensure you are using the most current form (www.uscis.gov/I-9).

2. Failing to fully complete the form. Sounds simple enough, but we often see that employers simply don’t complete the entire I-9. One idea: Keep in your files a fully completed form as an example to ensure that you include the appropriate information in all sections each time you complete a new I-9. Another idea: Have a blank I-9 and highlight the sections that must be completed to ensure you are doing so.

3. Not using Section 3. Section 3 can save time and paperwork when used properly to update certain information about an employee or to reverify the person’s status.

Use Section 3 to update an employee’s name if the person changes his or her name due to marriage or other reasons. You can also use Section 3 when an employee leaves your workforce and is rehired within three years of the date the form was originally completed or if a current employee’s work authorization is about to expire and you must reverify his or her work authorization.

4. Photocopying only part of a document.
As an employer, you have the option whether or not to photocopy the documents presented by employees (driver’s license, etc.). If you choose to keep photocopies of documents, make sure you photocopy both sides of the document—not just the front side.

5. “Over-documentation” in Section 2. The I-9 requires an employer to verify an employee’s identity and work authorization by allowing that individual to present either an acceptable List A document or List B and List C documents.  You don’t need List A, B and C documents.

It is not unusual to see employers—particularly when faced with noncitizen employees or those with Hispanic surnames—to require that they provide a List A permanent resident card and then a List C Social Security card, for instance.

This is not acceptable. Doing so can lead to claims of discrimination on the basis of national origin and/or citizenship because you’re treating these people differently than U.S.-born employees.

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 Author: Montserrat Miller is Of Counsel at Greenberg Traurig, LLP with the Business Immigration & Compliance Practice Group. Contact her at millermo@gtlaw.com.

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