It is remarkable that a seemingly simple, one-page form—the Form I-9—can cause so many headaches. But who says government forms are 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 electronic E-Verify program, which is only mandatory for certain employers such as federal contractors.
Here are the most common mistakes employers make:
1. Using an outdated version of the I-9. A new version was released in 2009. 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. To stay on top of this, check the U.S. Citizenship and Immigration Service’s 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,” says Greenberg Traurig immigration attorney Montserrat Miller, “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.
3. Not using Section 3. Section 3 can save 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. Inconsitency when photocopying documents. As an employer, you have the option whether or not to photocopy the documents presented by employees (driver’s license, etc.). “Photocopying supporting documents is a business decision—there are legal consequences either way,” says Dawn M. Lurie, a business immigration attorney with Greenberg Traurig in Washington, D.C. “We recommend that if an employer elects to make copies of supporting documents, you should staple them to the original I-9. In recent audits, having the photocopies has proved helpful in reducing fines.”
Whether or not you decide to copy documents, adopt a uniform policy. “Whatever choice you make, it must be applied consistently for all employees,” says Kevin Lashus, a Greenberg Traurig attorney in Austin, Texas.
Note: If you decide to copy original employee identification documents, be sure to copy both the front and back, Lashus advises.
EDITOR'S NOTE: Listen to Lashus, board certified in Immigration and Nationality Law and adjunct professor at the University of Texas School of Law, in this informative and entertaining podcast, I-9 Compliance Workshop: The 10 Commandments of Employee Verification. He explains:
- The 10 essential steps to correctly fill out an I-9
- Which documents can you review for Lists A, B and C, and what has changed since last year
- How far are you required to go to determine if a document is genuine
- What to consider when weighing whether to use an electronic I-9 system.
Click here to learn more about how to protect your business with this informative podcast.
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—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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