Times are changing in the world of workplace immigration law.
Since April 2009, employers have been required to use a new version of theEmployment Eligibility Verification Form, or I-9, when hiring and reverifying employees.
Meanwhile, the Department of Homeland Security (DHS) is getting tougher on employers that violate immigration and I-9 rules. DHS recently launched what it’s calling “a bold new audit initiative” to punish employers that hire illegals. Proof: In just one day this summer, ICE sent out more Notices of Inspection than it did in the entire year of 2008!
Also, starting Sept. 8, 2009, thousands of federal contractors are required to use the electronic E-Verify system. And confusion still reigns over how to handle “no-match” letters. 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 to avoid legal penalties for hiring unauthorized workers.
Below are tips on handling the new I-9 legally. (For more advice, listen to next week's webinar, Immigration Compliance Update: 2009-2010.)
Form I-9 is divided into three sections. The employee completes Section 1. 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; or 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: You can’t 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.
Immigration superlawyer and author of The Employer's Immigration Compliance Desk Reference Gregory Siskind will show you step-by-step how to comply with strict new federal rules on completing, signing and retaining your electronic I-9s with this audio training session Immigration Compliance Update
Section 3: Updating and reverification
In the past, Section 3 was used to reverify an employee’s employment authorization, when necessary.
Under the new rules, 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).