New I-9 Forms
Under the Immigration Reform and Control Act of 1986, employers have to document an employee’s identity and ability to work lawfully in the United States. Starting May 7, 2013, employers will have to start using an updated version of the employment verification form, commonly referred to as Form I-9. The new version of the form must be used for all new hires, rehires, and employment authorization reverifications occurring on or after May 7th.
The new form can be downloaded from the U.S Citizenship and Immigration Services website. Ensure that you have the correct form by looking for “03/08/13 N” in the lower left hand corner.
Employees and employers have the responsibility for filling out the form. However, employers bear a greater burden in that they have to complete the form in a timely manner, inspect an employee’s documents, and maintain records.
Employees must fill out Section 1 of the form after they receive the job offer and no later than the first day of employment. The form asks for the employee’s full legal name and “other names used”. The form’s instructions clarify that employees should list “N/A” if they have not had any other legal names. The form also asks for an employee’s social security number, which is voluntary unless the employer is participating in the E-Verify system. Employees must sign at the bottom of Section 1. The signature is their declaration, under penalty of perjury, that they have listed an accurate immigration status, have not made any false statements, or used any false documentation to complete the form.
The form looks deceptively simple and employers have to be very careful when filling it out. Employers must complete Section 2 of the form after the employee completes Section 1 and within three business days from the employee’s start date. It is the employer’s responsibility to examine documents showing the employee’s identity and employment authorization.
The form contains instructions and three lists of acceptable documents that employees can provide. Those instructions and lists must be available to all employees. In addition, employers must verify that the documents presented by the employee appear genuine. List A documents establish both identity and employment authorization, List B documents establish only identity, and List C documents establish only employment authorization.
Employers should remember the following to avoid exposure to common discrimination charges:
1) Employees get to decide which documents they want to present.
2) Do not refuse to hire an individual simply because of a future expiration date on the document. If an employee presents a listed document and it has not expired, accept it.
3) Do not be over-zealous or single out any nationality or racial group when verifying the authenticity of an employee’s documents. Employer representatives are not expected to be document experts. A document that appears genuine and is unexpired should be enough to fulfill the employer’s responsibility. If an employer has information that casts doubt on a document’s authenticity, it would be best to review the legal implications prior to taking any action.
4) Do not make photocopies of some employees’ supporting documentation and not others. Treat all employees the same way; photocopy all documents or none of them.
There are several other instances when employers should check their legal obligations. For example, an employee may not be able to produce the relevant document(s) when completing Form I-9. This raises the question of whether to terminate the employee immediately or whether the employee can have more time to gather the proper documentation. Additionally, an employment authorization document may expire while the employee is still working for the organization. This may trigger the reverification requirements in Section 3 of the form or result in employment being terminated.
Lastly, employers need to understand recordkeeping obligations. Any photocopies of supporting documentation should be kept with the employee’s form. In addition, employers must retain the completed form for three years from the date of hire or for one year after employment ends, whichever is the later date.
The following resources may be helpful to your organization:
In summary, remember these guidelines:
1) Starting May 7, 2013, utilize the new Form I-9 for all hires, rehires, or employment authorization reverifications.
2) The employee must complete Section 1 of the form after receiving the job offer but no later than the first day of employment.
3) Employers should complete Section 2 of the form within three business days from the employee’s start date.
4) Employees should be given the form, instructions, and lists of acceptable supporting documents. Employees get to decide which documents they will produce.
5) Treat all employees the same. Photocopy documents for either everyone or no one. Do not scrutinize the documents of one racial group or nationality more closely when compared to other groups.
6) Remember to maintain each employee’s Form I-9 records until the latter date of either three years from the date of hire or one year after employment ends.