Immigration Reform and Control Act of 1986 (IRCA) requires all employers to complete a Form I-9 to verify the identity and work authorization of every employee hired, regardless of citizenship. It is the employer’s duty to verify employment authorization.
Form I-9 must be completed within three days of the first day of employment. This means that before the end of the third day of employment:
- The employee must complete section 1;
- The employer must complete section 2;
- The employee must provide an original document from list A or a combination of a document from list B and C, proving their identity and employment authorization, listed on the third page of the I-9; and
- The employer must verify that the information provided in section 1 matches the information on the document(s) provided.
Be advised that the original document(s) must be physically presented. This means that if you have remote employees from other states, you will have to authorize a person to meet with the employee, verify the documents in person, and complete section 2.
Form I-9 was created to prevent:
- Employers from knowingly hiring unauthorized aliens;
- Employers from continuing to employ a person if the employer becomes aware that he or she is, or has become, unauthorized;
- Employers from hiring any individual without complying with the employment verification process; and
- Employers from discriminating against national origin, citizenship status, and document abuse.
To avoid discrimination lawsuits, it is very important that employers allow the employees to choose what documents to present from the lists. Employers may not require or request specific documents from the lists.
Retaining I-9 Forms
So, if one day ICE knocks on your business door, they will give you a three-day notice to produce I-9s for all employees. At that time, you should call a lawyer, before producing the documents. If you wait and call a lawyer after ICE finds mistakes on the I-9s, then the only assistance a lawyer could provide is negotiating lower fines. On the other hand, if you call an attorney as soon as you receive notice from ICE, then the attorney will have three days to review your I-9s and figure out how to avoid any fines.
Since ICE could knock on a business door at any time, all employers are required to retain all I-9s for the later of three years after the employee’s hire date or one year after the employee’s termination.
Employers may store I-9s electronically if they wish. However, an electronic system for I-9s must include an audit trail that tracks the date on which any I-9 Form is accessed or altered, the identity of the person who accessed it, and the action taken by the individual. The system must also have a backup system to protect against information loss. Since there are many requirements for electronically storing I-9 Forms, we recommend getting the advice of a seasoned immigration lawyer when switching from paper to electronic retention.
We would like to thank Deirdre D. Nero, Esq. of Nero Immigration Law, P.L. for the lunch and learn on Form I-9, where she provided this information and more helpful tips. If you need assistance on your I-9s or have any other immigration issues we recommend reaching out to her office by calling 305-351-1079 and mentioned you saw this post.
If you or anyone you know has more questions regarding employee processing or employers with doubtful practices, our knowledgeable staff is at ready to help. We can be reached via email or you can call to schedule a consultation. info@epgdlaw.com // (786) 837-6787
*Disclaimer: This blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*
