How to Safely Navigate the New I-9 Minefield

What Are the Requirements?

Under IRCA's I-9 employment eligibility verification requirements, an employer must: 1) not knowingly hire, or continue to employ, any person not authorized to work in the United States; and 2) verify the identity and employment eligibility of every new employee, whether the person is a U.S. citizen or foreign national, hired on or after Nov. 6, 1986. On the I-9 form, the employer must verify the employee's identity and authorization to work.

Both the revised form and the “Handbook for Employers, Guidance for Completing Form I-9″ (M-274) are available online at www.uscis.gov. USCIS has a schedule of useful free webinars about Form I-9 for employers at www.uscis.gov/I-9Central.

Filling Out the Form: Employee Responsibilities

The employee must fill out the first page of the form no later than the first day of employment. This means “the actual commencement of employment for wages or other remuneration.” The employee must attest on the I-9 form, under penalty of perjury, that he or she is not an unauthorized alien, and that the documents presented are genuine and relate to him or her (photocopies cannot be accepted!). The employee may choose among several acceptable documents to submit to the employer to verify identity and authorization to work, and an employer may not insist on seeing a specific type of document. When documents stipulate that an employee is an alien with only limited, temporary work authorization from USCIS, the employer must later reverify the alien's work eligibility. The employer must confirm, prior to the date of expiration, the alien's employment authorization extension in order to prevent any interruption in employment.

The employee now has the option of providing an e-mail address and telephone number. Apparently, this may assist the Department of Homeland Security (DHS) in contacting an employee regarding his or her employment verification. If employees choose not to complete these optional fields, they should write “N/A.”

Also, the U.S. Social Security Number (SSN) is optional unless the employer is signed up for E-Verify, in which case the number must be provided. There is also a new field requesting the foreign passport number and country of issuance for employees who are authorized to work in the U.S. only temporarily.

Make sure you are familiar with the rules about completing optional fields and fields with no responses. Please be aware that the pre-population of the employee information in Section 1 of the I-9 form by electronic I-9 programs is prohibited.

Filling Out the Form: Rules for Employers

The I-9 verification procedure provides a record for government investigators and also affords employers a good-faith defense against potential charges. However, even if an employer completes the employment eligibility verification paperwork properly, it can nevertheless be subject to severe penalties if it has knowledge of the unauthorized status of an employee.

The employer must complete page two of the I-9 form within three business days of the employee's first day of employment. In addition, the employer must attest, under penalty of perjury, that the employer has examined original documentation presented by the employee, that such document(s) “appear to be genuine” and relate to the employee named, and that to the best of the employer's knowledge the employee is authorized to work in the United States. In addition, this page now contains a box in which to enter the employee's last name, first name and middle initial in case the two pages of the form become separated. I recommend that you print the new I-9 form front and back so as to minimize that possibility.

Whether a document appears to be genuine incorporates a standard of reasonableness. Employers are not expected to be experts in detecting fraudulent documents. This standard provides a good-faith defense even if documents turn out to be fraudulent. Employers need simply apply general knowledge and common sense: If nothing seems unusual, that should be sufficient. However, if the documents do not reasonably appear on their face to be genuine or to relate to the person presenting them, the employer must not accept them.

Reverification and Rehires

Reverification situations include employees with temporary work authorization valid only through a specific date. The employer must reverify the employment eligibility of the employee by or before that expiration date. Reverifications must be conducted on Section 3 of the latest version of Form I-9 and the employer may not use Section 3 of an outdated form. Reverifications are complex and typically should be discussed with an immigration specialist.

Certain rehires do not require the completion of a new Form I-9, but you have the option to fill out a new Form I-9 as long as you do this for all rehires and are consistent in applying this policy. This includes employees who are rehired within three years of the initial completion of the Form I-9, as long as the employee remains eligible to work in the United States ' that is, there was no expiration date for employment eligibility listed on the original Form I-9 or the expiration date has not yet passed. However, if the employee is no longer eligible to work based on the information on the initial Form I-9, the employer must reverify the employee's employment status at the time of rehiring. Again, this “no reverification” rule does not apply to rehires more than three years after the initial completion of Form I-9.

How Long Do I Keep the Form?

The new form has improved instructions with more definitions, and there are also a few changes on the list of acceptable documents under List A and List C. Employers must have I-9 forms on file for all current employees. Form I-9 must be maintained in the employer's files for three years after the date you hire an employee or until one year after the date employment terminates, whichever is longer.

To Copy or Not to Copy?

The law allows, but does not require, employers to make copies of the employee's verification documents to attach to the I-9 form. However, if you choose to photocopy documents, you must do so for all employees, regardless of actual or perceived national origin, immigration or citizenship status, or you may be in violation of anti-discrimination laws. As with virtually all aspects of I-9 compliance, uniformity is vital. Therefore, an employer should give careful thought in deciding on its I-9 verification policy.

Compliance Tips for Employers

Employers should make sure that they provide new hires with the full, expanded I-9 instructions at the time they complete Section 1 of the I-9. It is a good practice to complete the I-9 form at the same time as other employment forms (W-4, insurance items, etc.) are filled out. Employers may not discriminate against individuals on the basis of national origin or citizenship (i.e., “foreign sounding,” “foreign looking,” etc.) or require more or different documents from a particular individual. This means that employers must treat all employees the same when completing the I-9 form and must apply these practices uniformly to all employees.

The fewer people conducting the I-9 verification for the employer, the better. Whenever possible, employers should designate only one or two representatives (per office) to conduct I-9 verifications, review documents, and sign the I-9 forms on behalf of the employer. The best practice is to select employer representatives with good attention to detail and sensitivity to the potential liabilities that employers face for deficient compliance practices. Make sure you review the entire I-9 form for completeness.

Employers have a continuing obligation to ensure work eligibility of their employees. This usually arises in one of two contexts: either where the individual's temporary work authorization is expiring, or where the employer in some way learns that an employee is not authorized to work. If circumstances exist that lead the employer to determine that the employee fraudulently executed the initial I-9, then the employer should not continue to rely on that form. (An employee's known false statement on the I-9 is a felony and is not excused by subsequent grants of work authorization or lawful status.) The employee should complete a new I-9, if employment is to continue. The employer may apply, in a nondiscriminatory manner, any policies it applies generally to suspected criminal conduct in the workplace or to suspected false statements in employment application materials. In any event, the initial Form I-9 should be retained as evidence of compliance at the time of hire.

Common I-9 Mistakes

Any “mistake” found on an I-9 form, regardless of how minor, can result in a civil penalty of $110 to $1,100 for each paperwork violation. It is therefore imperative that employers develop and maintain an accurate I-9 employment eligibility verification system in order to comply with the law and to be prepared in the event of an ICE audit. Where the I-9 forms are fully and properly completed and retained, employers will generally be protected. Employers can take steps to establish “good-faith compliance” in case ICE or the Department of Labor (DOL) comes knocking on their door.

The more common mistakes made in preparing I-9 forms are listed below:

• Employee and/or employer fail(s) to sign and date the I-9 form.
• Employee does not complete Section 1 of the I-9 form on or before the first day of employment.
• Employer does not examine verification documents and does not complete Section 2 of the I-9 form within three business days of the employee's first day of employment.
• Employer fails to insert the employee's first day of employment in the “CERTIFICATION” block of Section 2.
• Employee does not check one of the four blocks in Section 1 attesting to his or her status in the United States or fails to provide the required information for the third and fourth blocks. This is especially crucial where the employee checks “Box 4″ as an alien with time-limited authorization to work. If the fourth block is checked, the appropriate information must be provided.
• Employer fails to keep track of the expiration date of a “Box 4″ employee's temporary “time-limited” work authorization for purposes of conducting mandatory reverification. The employer must reverify an employee's time-limited employment authorization on or before the expiration date listed on the I-9 form in order to determine whether that authorization has been extended. Failure to reverify is a clear paperwork violation and will also subject the employer to a “knowing hire” violation if the alien employee in fact has no continuing work authorization.
• Employer lists too many identity and/or employment authorization documents in Section 2. The I-9 form should include only one document from List A, or one document from List B and one document from List C. Listing more than this is considered over-documentation. This is a “paperwork violation” and could result in a discrimination charge against the employer.
• Employer representative reviews photocopies of the employee's verification documents rather than the original documents, as required. The employee is required to present in person his or her original verification documents to the employer representative. The employer representative should never accept photocopies of documents for I-9 verification purposes.
• Employer fails to ensure that the employee's verification documents “appear to be genuine.” The employer representative should look to see that the typestyle on the document is consistent and does not contain obvious “white-out” or type-overs. Whether a document appears to be genuine incorporates a standard of reasonableness. Again, employers are not expected to be experts in detecting fraudulent documents. They need simply apply general knowledge and common sense.
• Employer fails to ensure that the employee's verification documents actually relate to the employee ' that is, information contained in the documents does not match other information available to the employer about the employee. The employer representative should look for a match in the employee's name and date of birth on the documents and assure they are consistent with other information. The employer should also review any other descriptive information on the documents and make a visual comparison with the employee ( e.g., general age, height, eye color, etc.).
• Employer fails to keep copies of verification documents presented either for all employees or for none at all. The law permits, but does not require, employers to make copies of the employee's verification documents to attach to the I-9 form. It is important that the employer's policy in this regard be standardized and applied consistently for all employees. Thus, the employer should not make document copies only for some workers. It is also an IRCA violation to make document copies and keep them anywhere other than with the relating I-9 form.
• Employer representative who sees the verification documents is not the same employer representative who signs the I-9 form. The employer representative who reviews the verification documents must be the same person that signs the I-9 form.
• Employer does not keep the I-9 records separate from its general personnel records. Because I-9 records may contain information on an employee's age, national origin, and citizenship status, maintaining separate I-9 records can help employers avoid the appearance that some later personnel action was influenced by information from the I-9 form. Moreover, as a practical matter, segregated I-9 records allow an employer to assemble these records quickly in response to a DOL or ICE inspection.

'What Is Next?

What remains to be seen is how ICE will address violations relating to improper completion of the form in light of the new instructions. With immigration reform looming, a renewed focus on enforcement and the prospect of E-Verify becoming mandatory for all U.S. employers (i.e.,H.R. 1772 – The Legal Workforce Act), I suspect that Form I-9 and the accompanying employer handbook will continue to be updated. Stay tuned and put your immigration or employment counsel on speed dial!

Anton Mertens is a partner and immigration lawyer with Burr & Forman LLP (Atlanta). He advises on a number of employment issues, including compliance procedures in verifying the work eligibility of new employees as required under the I-9 “workplace compliance” provisions of federal law. Mertens may be reached at 404-685-4267 or [email protected].

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After a flurry of revisions over the past several years, the U.S. Citizenship and Immigration Services (USCIS) settled in March 2013 on the latest edition of Form I-9, Employment Eligibility Verification. This ubiquitous one-page form, familiar to every human resource professional and in-house counsel, has now grown to two pages, not to mention the six pages of instructions. Employers must use the latest version of the form bearing an edition date of March 8, 2013, and employers that fail to do so may be subject to penalties enforced by Immigration and Customs Enforcement (ICE).

Birth of the Form

Form I-9 was born as a result of the Immigration Reform and Control Act of 1986 (IRCA). Congress intended to stem the flow of illegal immigration into the United States and began requiring employers to fill out the I-9 form for all new hires. IRCA sought to diminish the lure of American jobs for foreign workers by penalizing employers that knowingly hire workers who are unauthorized aliens ' that is, non-U.S. citizens who are not authorized to accept employment in this country. It is unlawful for employers to hire any individual without complying with the IRCA verification of work status and record-keeping requirements.

What Are the Requirements?

Under IRCA's I-9 employment eligibility verification requirements, an employer must: 1) not knowingly hire, or continue to employ, any person not authorized to work in the United States; and 2) verify the identity and employment eligibility of every new employee, whether the person is a U.S. citizen or foreign national, hired on or after Nov. 6, 1986. On the I-9 form, the employer must verify the employee's identity and authorization to work.

Both the revised form and the “Handbook for Employers, Guidance for Completing Form I-9″ (M-274) are available online at www.uscis.gov. USCIS has a schedule of useful free webinars about Form I-9 for employers at www.uscis.gov/I-9Central.

Filling Out the Form: Employee Responsibilities

The employee must fill out the first page of the form no later than the first day of employment. This means “the actual commencement of employment for wages or other remuneration.” The employee must attest on the I-9 form, under penalty of perjury, that he or she is not an unauthorized alien, and that the documents presented are genuine and relate to him or her (photocopies cannot be accepted!). The employee may choose among several acceptable documents to submit to the employer to verify identity and authorization to work, and an employer may not insist on seeing a specific type of document. When documents stipulate that an employee is an alien with only limited, temporary work authorization from USCIS, the employer must later reverify the alien's work eligibility. The employer must confirm, prior to the date of expiration, the alien's employment authorization extension in order to prevent any interruption in employment.

The employee now has the option of providing an e-mail address and telephone number. Apparently, this may assist the Department of Homeland Security (DHS) in contacting an employee regarding his or her employment verification. If employees choose not to complete these optional fields, they should write “N/A.”

Also, the U.S. Social Security Number (SSN) is optional unless the employer is signed up for E-Verify, in which case the number must be provided. There is also a new field requesting the foreign passport number and country of issuance for employees who are authorized to work in the U.S. only temporarily.

Make sure you are familiar with the rules about completing optional fields and fields with no responses. Please be aware that the pre-population of the employee information in Section 1 of the I-9 form by electronic I-9 programs is prohibited.

Filling Out the Form: Rules for Employers

The I-9 verification procedure provides a record for government investigators and also affords employers a good-faith defense against potential charges. However, even if an employer completes the employment eligibility verification paperwork properly, it can nevertheless be subject to severe penalties if it has knowledge of the unauthorized status of an employee.

The employer must complete page two of the I-9 form within three business days of the employee's first day of employment. In addition, the employer must attest, under penalty of perjury, that the employer has examined original documentation presented by the employee, that such document(s) “appear to be genuine” and relate to the employee named, and that to the best of the employer's knowledge the employee is authorized to work in the United States. In addition, this page now contains a box in which to enter the employee's last name, first name and middle initial in case the two pages of the form become separated. I recommend that you print the new I-9 form front and back so as to minimize that possibility.

Whether a document appears to be genuine incorporates a standard of reasonableness. Employers are not expected to be experts in detecting fraudulent documents. This standard provides a good-faith defense even if documents turn out to be fraudulent. Employers need simply apply general knowledge and common sense: If nothing seems unusual, that should be sufficient. However, if the documents do not reasonably appear on their face to be genuine or to relate to the person presenting them, the employer must not accept them.

Reverification and Rehires

Reverification situations include employees with temporary work authorization valid only through a specific date. The employer must reverify the employment eligibility of the employee by or before that expiration date. Reverifications must be conducted on Section 3 of the latest version of Form I-9 and the employer may not use Section 3 of an outdated form. Reverifications are complex and typically should be discussed with an immigration specialist.

Certain rehires do not require the completion of a new Form I-9, but you have the option to fill out a new Form I-9 as long as you do this for all rehires and are consistent in applying this policy. This includes employees who are rehired within three years of the initial completion of the Form I-9, as long as the employee remains eligible to work in the United States ' that is, there was no expiration date for employment eligibility listed on the original Form I-9 or the expiration date has not yet passed. However, if the employee is no longer eligible to work based on the information on the initial Form I-9, the employer must reverify the employee's employment status at the time of rehiring. Again, this “no reverification” rule does not apply to rehires more than three years after the initial completion of Form I-9.

How Long Do I Keep the Form?

The new form has improved instructions with more definitions, and there are also a few changes on the list of acceptable documents under List A and List C. Employers must have I-9 forms on file for all current employees. Form I-9 must be maintained in the employer's files for three years after the date you hire an employee or until one year after the date employment terminates, whichever is longer.

To Copy or Not to Copy?

The law allows, but does not require, employers to make copies of the employee's verification documents to attach to the I-9 form. However, if you choose to photocopy documents, you must do so for all employees, regardless of actual or perceived national origin, immigration or citizenship status, or you may be in violation of anti-discrimination laws. As with virtually all aspects of I-9 compliance, uniformity is vital. Therefore, an employer should give careful thought in deciding on its I-9 verification policy.

Compliance Tips for Employers

Employers should make sure that they provide new hires with the full, expanded I-9 instructions at the time they complete Section 1 of the I-9. It is a good practice to complete the I-9 form at the same time as other employment forms (W-4, insurance items, etc.) are filled out. Employers may not discriminate against individuals on the basis of national origin or citizenship (i.e., “foreign sounding,” “foreign looking,” etc.) or require more or different documents from a particular individual. This means that employers must treat all employees the same when completing the I-9 form and must apply these practices uniformly to all employees.

The fewer people conducting the I-9 verification for the employer, the better. Whenever possible, employers should designate only one or two representatives (per office) to conduct I-9 verifications, review documents, and sign the I-9 forms on behalf of the employer. The best practice is to select employer representatives with good attention to detail and sensitivity to the potential liabilities that employers face for deficient compliance practices. Make sure you review the entire I-9 form for completeness.

Employers have a continuing obligation to ensure work eligibility of their employees. This usually arises in one of two contexts: either where the individual's temporary work authorization is expiring, or where the employer in some way learns that an employee is not authorized to work. If circumstances exist that lead the employer to determine that the employee fraudulently executed the initial I-9, then the employer should not continue to rely on that form. (An employee's known false statement on the I-9 is a felony and is not excused by subsequent grants of work authorization or lawful status.) The employee should complete a new I-9, if employment is to continue. The employer may apply, in a nondiscriminatory manner, any policies it applies generally to suspected criminal conduct in the workplace or to suspected false statements in employment application materials. In any event, the initial Form I-9 should be retained as evidence of compliance at the time of hire.

Common I-9 Mistakes

Any “mistake” found on an I-9 form, regardless of how minor, can result in a civil penalty of $110 to $1,100 for each paperwork violation. It is therefore imperative that employers develop and maintain an accurate I-9 employment eligibility verification system in order to comply with the law and to be prepared in the event of an ICE audit. Where the I-9 forms are fully and properly completed and retained, employers will generally be protected. Employers can take steps to establish “good-faith compliance” in case ICE or the Department of Labor (DOL) comes knocking on their door.

The more common mistakes made in preparing I-9 forms are listed below:

• Employee and/or employer fail(s) to sign and date the I-9 form.
• Employee does not complete Section 1 of the I-9 form on or before the first day of employment.
• Employer does not examine verification documents and does not complete Section 2 of the I-9 form within three business days of the employee's first day of employment.
• Employer fails to insert the employee's first day of employment in the “CERTIFICATION” block of Section 2.
• Employee does not check one of the four blocks in Section 1 attesting to his or her status in the United States or fails to provide the required information for the third and fourth blocks. This is especially crucial where the employee checks “Box 4″ as an alien with time-limited authorization to work. If the fourth block is checked, the appropriate information must be provided.
• Employer fails to keep track of the expiration date of a “Box 4″ employee's temporary “time-limited” work authorization for purposes of conducting mandatory reverification. The employer must reverify an employee's time-limited employment authorization on or before the expiration date listed on the I-9 form in order to determine whether that authorization has been extended. Failure to reverify is a clear paperwork violation and will also subject the employer to a “knowing hire” violation if the alien employee in fact has no continuing work authorization.
• Employer lists too many identity and/or employment authorization documents in Section 2. The I-9 form should include only one document from List A, or one document from List B and one document from List C. Listing more than this is considered over-documentation. This is a “paperwork violation” and could result in a discrimination charge against the employer.
• Employer representative reviews photocopies of the employee's verification documents rather than the original documents, as required. The employee is required to present in person his or her original verification documents to the employer representative. The employer representative should never accept photocopies of documents for I-9 verification purposes.
• Employer fails to ensure that the employee's verification documents “appear to be genuine.” The employer representative should look to see that the typestyle on the document is consistent and does not contain obvious “white-out” or type-overs. Whether a document appears to be genuine incorporates a standard of reasonableness. Again, employers are not expected to be experts in detecting fraudulent documents. They need simply apply general knowledge and common sense.
• Employer fails to ensure that the employee's verification documents actually relate to the employee ' that is, information contained in the documents does not match other information available to the employer about the employee. The employer representative should look for a match in the employee's name and date of birth on the documents and assure they are consistent with other information. The employer should also review any other descriptive information on the documents and make a visual comparison with the employee ( e.g., general age, height, eye color, etc.).
• Employer fails to keep copies of verification documents presented either for all employees or for none at all. The law permits, but does not require, employers to make copies of the employee's verification documents to attach to the I-9 form. It is important that the employer's policy in this regard be standardized and applied consistently for all employees. Thus, the employer should not make document copies only for some workers. It is also an IRCA violation to make document copies and keep them anywhere other than with the relating I-9 form.
• Employer representative who sees the verification documents is not the same employer representative who signs the I-9 form. The employer representative who reviews the verification documents must be the same person that signs the I-9 form.
• Employer does not keep the I-9 records separate from its general personnel records. Because I-9 records may contain information on an employee's age, national origin, and citizenship status, maintaining separate I-9 records can help employers avoid the appearance that some later personnel action was influenced by information from the I-9 form. Moreover, as a practical matter, segregated I-9 records allow an employer to assemble these records quickly in response to a DOL or ICE inspection.

'What Is Next?

What remains to be seen is how ICE will address violations relating to improper completion of the form in light of the new instructions. With immigration reform looming, a renewed focus on enforcement and the prospect of E-Verify becoming mandatory for all U.S. employers (i.e.,H.R. 1772 – The Legal Workforce Act), I suspect that Form I-9 and the accompanying employer handbook will continue to be updated. Stay tuned and put your immigration or employment counsel on speed dial!

Anton Mertens is a partner and immigration lawyer with Burr & Forman LLP (Atlanta). He advises on a number of employment issues, including compliance procedures in verifying the work eligibility of new employees as required under the I-9 “workplace compliance” provisions of federal law. Mertens may be reached at 404-685-4267 or [email protected].

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