I-9 COMPLIANCE: WHAT EVERY EMPLOYERS NEEDS TO BE WARY OF!By Ashima Arora*We all hear about increased enforcement of immigration laws but are under theimpression that one need only worry about immigration laws if one employs aliens. Thisis a MYTH. In September 2010, Abercombie & Fitch was fined $1,047,110.00 for theirtechnology related deficiencies in I-9 verification system. It’s not just about hiringunauthorized employees/workers knowingly or unknowingly but proper identification,completion, re-verification and retention of I-9 forms for all employees is imperative. I-9compliance is required for every employee Citizen or non-citizen.So what is I-9 and what steps must employer take to comply with I-9?I-9 is a one page form1 divided into three sections requiring employee to show workauthorization and identity and employer to verify the same.Section 1 should be completed and signed by new employee no later than the first day ofemployment, regardless of his or her immigration status.Section 2 of I-9 form must be completed by Employers signed and dated within 3business days of the employee’s first day of employment. If the employment relationshipwill last less than 3 days, then the employer must verify work authorization and completeSection 2 no later than the first day of employment. Employer must physically examinethe documents. If an employee is unable to present required document(s) within 3business days, the employee must produce a receipt showing that he/she has applied forthe replacement document. In addition, the employee must present the actual documentwithin 90 days of the hire AND the employee must have indicated that he/she is alreadyeligible to be employed in the United States by checking the appropriate box in Section 1.Section 3 of I-9 form must be periodically updated and re-verified by employer foremployees who are not permanently authorized to work in United States.There are three lists of documents:1 I-9 form can be downloaded from- http://www.uscis.gov/files/form/i-9.pdf
List A2 documents establish both identity and authorization to work in the United States.The applicant may show any one of these documents to complete the I-9 Form. If theapplicant does not provide one of the documents specified in List A, the person mayshow a document described in List B and a document described in List C.List B3 documents only establish identity.List C4 documents only establish employment eligibility, meaning the person isauthorized to work in the United States.2 List A Documents1. U.S. Passport (unexpired or expired)2. Certificate of U.S. Citizenship (INS Form N-560 or N-561)3. Certificate of Naturalization (INS Form N-550 or N-570)4. Unexpired foreign passport, with I-551 stamp or attached INS Form I-94 indicating unexpiredemployment authorization5. Alien Registration Receipt Card with photograph (INS Form I-151 or I-551)6. Unexpired Temporary Resident Card (INS Form I-688)7. Unexpired Employment Authorization Card (INS Form I-688A)8. Unexpired Reentry Permit (INS Form I-327)9. Unexpired Refugee Travel Document (INS Form I-571)10. Unexpired Employment Authorization Document issued by the INS which contains a photograph (INSForm I-688B)3 List B DocumentsThese documents establish identity. Unless the person has provided a document from List A (above), theapplicant must show a document in both List B and List C to complete the I-9 Form.1. Drivers license or ID card issued by a state or outlying possession of the United States provided itcontains a photograph or information such as name, date of birth, sex, height, eye color, and address;2. ID card issued by federal, state or local government agencies or entities provided it contains aphotograph or information such as name, date of birth, sex, height, eye color, and address;3. School ID card with a photograph;4. Voters registration card;5. U.S. Military card or draft record;6. Military dependents ID card;7. U.S. Coast Guard Merchant Mariner Card;8. Native American tribal document;9. Drivers license issued by a Canadian government authority.For persons under age 18 who are unable to present a document listed above:10. School record or report card11. Clinic, doctor, or hospital record12. Day-care or nursery school record .4 List C Documents
If the employee cannot produce the required documents within the requisite time thatemployee should be terminated immediately.Retention PeriodEmployers must fill out and keep a Form I-9 for every employee hired on or afterNovember 6, 1986. Employers must do an I-9 form for every employee, and not just non-citizens. In the case of former employees, retention of Forms I-9 are required for a periodof at least three years from the date of hire or for one year after the employee is no longeremployed, whichever is longer.ExceptionsI-9 compliance is not required for below employees: i. Hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times; ii. Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis; iii. Independent contractors; or iv. Providing labor to you who are employed by a contractor providing contract services; v. Not physically working on U.S.soil.PenaltiesThe Law provides for penalties from $100 to $1,000 for each incorrect or missing I-9.The number of criminal prosecutions of employers found to be in violation of I-9employment eligibility verification has also risen steadily over the past few years. Theemployer is required to verify documents for both identity and authorization to work inthe United States. Persons or entities who are convicted of having engaged in a pattern orpractice of knowingly hiring unauthorized aliens (or continuing to employ aliensThese documents establish employment eligibility. 1. U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment) 2. Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350) 3. Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal 4. Native American tribal document 5. U.S. Citizen ID Card (INS Form I-197) 6. ID Card for use of Resident Citizen in the United States (INS Form I-179) 7. Unexpired employment authorization document issued by the INS (other than those listed under List A)
knowing that they are or have become unauthorized to work in the United States) afterNovember 6, 1986, may face fines of up to $3,000 per employee and/or 6 monthsimprisonment. Persons who use fraudulent identification or employment authorizationdocuments or documents that were lawfully issued to another person, or who make afalse statement or attestation to satisfy the employment eligibility verificationrequirements, may be fined, or imprisoned for up to 5 years, or both.The violations can be by hiring unauthorized workers, paperwork violations of I-9, lackof verification of documents presented, asking more documents than necessary which canlead to discrimination lawsuits5. Proper completion of I-9 forms is one of the best waysto avoid legal penalties.Federal contractors and subcontractors are required to use E-Verify as of September 8,2009. E-Verify is an Internet-based system that allows an employer, using informationreported on an employees Form I-9, Employment Eligibility Verification, to determinethe eligibility of that employee to work in the United States. For most employers, the useof E-Verify is voluntary and limited to determining the employment eligibility of newhires only. The law also obliges U.S. employers not to discriminate against individuals onthe basis of national origin or citizenship, or require different documents from anindividual. Thus it is imperative to comply with I-9 after making a decision to hire andnot to request different or more documents than is necessary to avoid claims ofdiscrimination and document abuse.Let’s begin this year by proper compliance of I-9 forms and emplacing a mechanism ofinternal self-audits of I-9 forms to avoid unwanted fines later.*Attorney Ashima Arora is licensed in Texas, California (inactive), Solicitor (non-practicing) in England & Wales. For questions email at firstname.lastname@example.org orcall at: 713.595.6657 or mail: P.O. Box 940543, Houston, TX 77094-7543The information in this column is not intended as legal advice but to provide a generalunderstanding of the law.5 On December 29, 2010, Department of Justice in its news release reported a fine and settlement imposedon Collins Management Group for refusing to accept valid Drivers license and unrestricted social securitycard and instead insisting on producing an unexpired green card. “The INA’s anti-discrimination provisionprotects all authorized workers from unfair documentary requests during the Form I-9 process,” saidThomas E. Perez, Assistant Attorney General for the Civil Rights Division.