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With DHS cracking down, follow these I-9 best practices

by on
in Employment Law,Hiring,Human Resources

by Casey Nolan, Esq.

Due to recent changes in the Immigration Reform and Control Act, there’s a new I-9 Employment Eligibility Verification form for employers to complete when hiring employees and reverifying the employment eligibility of certain employees with temporary work authorization.

You can download the new form from the U.S. Citizenship and Immigration Services’ web site: www.uscis.gov/files/form/i-9.pdf.

Protection from DHS action

In the past three years, the U.S. Department of Homeland Security (DHS) has made workplace enforcement of immigration laws a high priority. (See Immigration crackdown targets employers—not illegal workers.) In this climate of increased immigration enforcement, making sure you have a properly completed Form I-9 for every employee is one of the best ways for you to avoid legal penalties for hiring unauthorized workers.

Form I-9 is divided into three sections. The employee completes Section 1, and the employer completes Sections 2 and 3.

Section 1: Employee Information and Verification

In Section 1, the employee fills in personal data and must attest that he or she is one of the following:

  • A citizen or national of the United States
  • A lawful permanent resident
  • An alien authorized to work.

The employee must then sign and date the form. Employers must ensure this section is completed “at the time of hire” or when the employee presents himself or herself for work.

Section 2: Employer Review and Verification

Employers must verify an employee’s identity and work authorization in Section 2 in one of two ways:

  • By examining an original document from List A of the Form I-9 or
  • By examining an original document from List B that establishes identity and an original document from List C that establishes employment eligibility.

The three lists of acceptable documents appear on the back of Form I-9.

Note: Employers may not specify which documents the employee presents. You must accept any document from List A or a combination of documents from List B and List C. Employers must view the original documents and may accept them if they reasonably appear to be genuine and relate to the person presenting them.

Unless the employee provides the employer with a work authorization document that will expire, the employer is under no further obligation to reverify documents. Section 2 must be completed within three business days of the hire.

Section 3: Updating and Reverification

In the past, Section 3 was used to reverify an employee’s employment authorization, when necessary.

Under the new regulations, employers must use the revised Form I-9 with its new list of acceptable documents when reverifying an employee’s eligibility. You may no longer reverify an employee by completing Section 3 on a previous version of the Form I-9.

Retention and review

Retain the Form I-9 for three years beyond the hire date or one year beyond the termination date, whichever is later. You must keep I-9s in files available for inspection by authorized governmental officials.

Periodically review your employment eligibility verification practices to ensure compliance. Missing information should be added, initialed and dated, either by the employee (in Section 1) or by the employer (in Sections 2 and 3).

If you need additional documentation from an employee to verify employment eligibility, you may not specify which documents must be presented, and you must not request or require more documentation than is necessary.

Instead of making additions to old existing I-9s, you may complete a new version of the form. Staple the old form to the new one and keep them both on file.


Author: Casey Nolan is an associate attorney practicing in the Employment Law Group at Gray Plant Mooty. She can be reached at (612) 632-3279 or at casey.nolan@gpmlaw.com.

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