Take Time This Summer to Review Your Immigration Law Compliance and Form I-9s

With ICE conducting more and more raids throughout the country, employers should take some time this summer to review their documentation regarding their employees’ eligibility to work to ensure compliance with the current law.

Every U.S. employer must have a Form I-9 in its files for each new employee, unless:
  • the employee was hired before November 7, 1986, and has been continuously employed by the same employer.
  • Form I-9 need not be completed for those individuals:
  • providing domestic services in a private household that are sporadic, irregular, or intermittent;
  • providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
  • providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)
Therefore, almost every employee hired (unless specified in one of the very narrow exceptions above) should complete an I-9 Form.

When do employees have to complete the I-9 Form?
A new employee must complete Section 1 of the Form I-9 no later than close of business on his/her first day of work. The employee’s signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full.

The employer is responsible ensuring completion of the entire form. Once the employee completes Section 1, the employer must complete Section 2 no later than close of business on the employee’s third day of employment. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The Employer msut carefully follow the instructions found on the Form I-9 regarding which documents are acceptable. Failure to closely follow the instructions could expose the employer to discrimination claims. The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them.

If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.

What if during the review and employer discovers that I-9s are missing?
The U.S. Citizenship and Immigration Services website provides:
An employer who discovers that the Form I-9 is not on file for a given employee should request that the employee complete section 1 of the Form I-9 immediately and submit documentation as required in Section 2. The new form should be dated when completed--never post-dated. When an employee does not provide acceptable documentation, the employer must terminate employment or risk being subject to penalties for “knowingly” continuing to employ an unauthorized worker if the individual is not in fact authorized to work.

How long do employers need to retain the I-9 Forms?
Employers must maintain I-9 records in its own files for 3 years after the date of hire or 1 year after the date the employee's employment is terminated, whichever is longer. This means that Form I-9 need to be retained for all current employees, as well as terminated employees whose records remain within the retention period. Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection. It is highly recommended that the I-9 Forms and related documents be maintained in separate files so that the documents can be easily produced to the government within the three-day notice period.
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