The Immigration and Customs Enforcement agency’s recent arrest of nearly 300 illegal aliens working for janitorial service companies used by Wal-Mart stores across the country highlights the importance of making sure everyone you employ is eligible to work in the United States.  Immigration laws require employers to verify the identity and employment eligibility of every person hired within the first three days of employment.
 
What To Do
You do not have to verify the employment eligibility of job applicants, and it is important not to ask an applicant about his or her citizenship or national origin.  In an interview, you may only ask an applicant whether, if hired, he or she can provide proof of eligibility to work in the United States.  Otherwise, do not ask for any additional information or for the applicant to provide documentation to prove his or her employment eligibility until after you have hired him or her.

Once hired, you verify an employee’s work eligibility by filling out a Form I-9.  You must complete an I-9 for every person who works for your company except the following:

• Employees hired before November 6, 1986 who have been continuously employed by the same employer;
• Individuals performing casual employment who provide domestic service in a private home on a sporadic, irregular or intermittent basis;
• Independent contractors; and
• Workers provided to employer by individuals or entities providing contract services.

Further, as in the Wal-Mart case, you cannot knowingly contract for services with an individual who is not authorized to work in the U.S. or with an entity that provides employees who are not eligible to work.

You can download a copy of the I-9 from the website for U.S. Customs and Immigration Services (USCIS) by clicking here or go to the website www.uscis.gov and click on “Immigration Forms, Fees and Fingerprints” on the left side of the screen.  The government last revised the form in November 1991.  However, Congress has revised the employment verification rules since the form was last revised in November 1991.  The revisions will be discussed below and must be followed even though the form has not been updated.  No date has been set for the publication of a new form.
 
Filling out the I-9
The I-9 has three sections.  The employee must fill out Section 1 by his or her date of hire.  The employer must review the documents the employee presents to verify identity and work eligibility and complete Section 2 of the I-9 within three business days after the date of hire.  Section 3 only needs to be filled out if the document used to show work eligibility expires at some time during employment.

The employer representative must review the employee’s documents in person.  Reviewing copies of the documents will not satisfy the legal requirements.  Therefore, if a new employee cannot come to the work site, the USCIS recommends the employer designate a local agent such as a notary public, accountant, attorney or human resources manager to complete the I-9 and view the employee’s documents.  The employer should choose the agent carefully, because the employer will be held responsible for the actions of the agent.
 
Reviewing the Employee’s Documents
The I-9 includes three lists of documents the employee can show to prove identity and eligibility to work in the United States.  List A includes documents that show both identity and work eligibility.  List B includes documents that show identity and List C includes documents that show work eligibility.  The employee can choose to show either one document from List A or one document each from Lists B and C.  It is the employee’s choice; the employer cannot require the employee to provide specific documents as long as the documents provided meet the requirements of the form.  However, because of changes Congress made in 1997 to the immigration laws, the following List A documents may no longer be used:  Form I-151, Certificate of U.S. Citizenship, Certificate of Naturalization, Unexpired Reentry Permit and Unexpired Refugee Travel Document.

The documents must reasonably appear on their face to be genuine.  If they do not appear to be genuine, the employer may not accept them as proof of identity and eligibility to work.

If an employee’s work authorization expires during employment, you must reverify his or her work authorization by viewing the new authorization and completing Section 3 of the I-9.  The reverification should be completed no later than the date the first work authorization expires.
 
Filing Requirements
You do not have to send completed I-9 forms to the USCIS.  You only need to keep them on file at your place of business.  They should be kept in a separate file cabinet or file drawer from employee personnel files because they often contain information regarding protected characteristics such as national origin, race and age.  But it is not necessary to keep a separate file for each employee.  HRCentral recommends keeping the I-9 forms in 3-ring binders with one set of binders for active employees and one for terminated employees.  You must keep I-9 forms for at least three years from the date of hire or one year from the date of termination of employment, whichever is later.

The law does not require you to make copies of the employee’s documents, but you may choose to do so.  The benefit of keeping copies is that it provides proof that you reviewed the documents and that the documents reasonably appear to be genuine.

If you have not audited your I-9 forms for awhile, or ever, you should do so right away and on a regular basis to ensure that there is an I-9 for every employee, that each form has been completely filled out and signed, and that employment authorization has been reverified if the original authorization expired.  If there is no I-9 for an employee or the form has not been completely filled out, you should complete the form as soon as possible including having the employee present documents if necessary.  According to the USCIS, you should date the document when it was completed and attach a memo explaining why it was not completed on time.  Post-dating an I-9 can result in penalties for the employer.
 
Penalties for Noncompliance
There are penalties if an employer knowingly hires or retains an unauthorized alien, fails to properly complete an I-9 for each employee or engages in unfair immigration-related employment practices such as discriminating against an applicant or employee because of his or her citizenship or national origin.  The penalties can be both civil and criminal.  Civil penalties range from $250 per incident for a first offense up to $10,000 per incident for multiple offenses.  Criminal penalties may be assessed in cases involving fraud, misuse of immigration documents or a pattern or practice of hiring or retaining unauthorized aliens and can range from six months to five years in prison.
 
Conclusion
Wal-Mart’s experience points out the importance of complying with immigration laws related to employment.  If you have any questions about verifying employment eligibility or completing I‑9 forms, contact HRCentral today for more information.