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Form I-9 Compliance


Immigration Law Firms, Berger & Berger

In 1986, the Immigration and Control Act made employers liable for knowingly employing aliens not authorized to work in the U.S. by the Immigration and Naturalization Service (INS). Employers are required to maintain I-9 Forms showing that all employees are authorized to work in the U.S., including U.S. citizens. Many common errors are committed by employers completing the I-9 Form. Violations of these laws expose all employers to substantial civil, and possibly criminal, penalties. This complex area of the law demands careful attention by all employers.
Although the law underwent minor modifications in 1996, employers should be as careful as ever in assuring the Form I-9 is meticulously filled in.

Employer Verification Requirement: The I-9 Form

  • All employees hired after November 6, 1986 are required to have an 1-9, Employment Eligibility Verification Form, on file with the employer The employee must present document(s) establishing identity and authorization to work in the U.S. The employer must examine and record information concerning the documents, and accurately record identification numbers and expiration dates.
  • The employee's Section 1 of the I-9 Form must be completed at the time employment begins or before. Employer's Section 2 must be competed before employment begins or within three business days of the date the employee starts working. The employer and employee must sign the form. 
  • Standard procedures at the time of hire are recommended. Systems to re-check documents with expiration dates should be set-up.  
  • An employer may not require an employee to produce a particular document like a permanent residence document (green card). There is a broad choice of acceptable documents for both identity and work authorization. To require a particular document is a prohibited practice.

Exceptions to the Verification Requirements

  • Employees hired on or before November 6, 1986 are not required to fill out Form I-9.
  • Temporary leave, with or without pay
  • Temporary lay-offs 
  • Strike or labor dispute 
  • Transfers from one place of employment to another 
  • Continued employment with a related, reorganized successor employer 
  • Independent contractors who carry on independent business or who are paid by piecework or assignment completed off site. 
  • Self-employed people as they are not considered employees of an employer.

Common Errors Committed in Preparing I-9 Forms

  • Make sure that every item in Section l, Employee Information and Verification, is completed by the employee. Make sure that the employee has signed the form in the box provided for the signature and dated it. The employee must check one of the three boxes to show status in the United States.
  • The most common acceptable documentation used to complete List B is a driver's license. Be sure to specify the state in the United States from which the driver's license was issued.   
  • Do not omit the date upon which a document expires. 
  • The employer's representative who viewed the original documents must sign Section 2, Employer Review and Verification, and print or type his or her name. Do not sign unless you have personally viewed all the documents. 
  • Do not omit the name and address of the business in the employer's certification block. A fine will be levied each time this information is omitted.

Use of Amended Form I-9 Required by December 26, 2007

In an effort to eliminate the employment of undocumented workers in the United States, the U.S. Citizenship and Immigration Services (USCIS) is requiring all employers to use the revised Form I-9 "Employment Eligibility Verification Form," dated June 5, 2007.  Employers are required to use this form as of December 26, 2007.  Any employer who fails to use the revised Form I-9 by this date may be subject to fines and penalties.

The Immigration Reform and Control Act (IRCA) requires all employers to verify and document each employee's authorization for employment in the United States.  Employers must present new hires with Form I-9 for completion of Section 1 on the first day of work and completion of Section 2 within three business days of the date that employment begins.

The most significant change to Form I-9 is the removal of certain documents from the list of acceptable supporting documents that establish identity and/or employment eligibility: (1) the Certificate of U.S. Citizenship (Form N-560 or N-570); (2) the Certificate of Naturalization (Form N-550 or N-570); (3) the Alien Registration Receipt Card (Form I-151); (4) the unexpired Reentry Permit (Form I-327); and (5) the unexpired Refugee Travel Document (Form I-571).  These documents were removed from the list because they do not contain sufficient security features to deter counterfeiting, tampering and fraud.

In order to assist employers with these changes, USCIS posted its revised Handbook for Employers, Instructions for Completing the Form I-9 (Form M-274) on their website, www.uscis.gov.  An employer may also call USCIS at 1-800-870-3676 or 1-800-375-5283 to order a hardcopy.