Hiring Foreign Nationals and a Summary of I-9 compliance

Form I-9 is the Employment Eligibility Verification Form issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services. By law all US employers are responsible for completion and retention of Forms I-9 for all US citizen as well as non-citizen employees it has hired for employment in the US after November 6, 1986.

ONLY officially registered participants in the Department of Homeland Security’s automated verification system pilot projects are permitted to verify the work authorization of a newly hired employee.

Worksite Enforcement and Employment Eligibility Verification

US employers document that they have verified whether a newly hired employee is eligible to work in the US, employers through the Employment Eligibility Verification Forms I-9. An employer's obligation to review documents is not triggered until a person has been hired, whereupon the new employee is entitled to submit a document or combination of documents of his choice (from List A or a combination of a List B and List C document on the reverse side of the I-9 form) to verify his identity and work eligibility. An employee may not be able to provide a social security number if the Social Security administration has not yet issued the individual a social security card. Since this information block is optional, an employer cannot require an employee to complete it.

Protection from Discrimination

The I-9 process may not be used to pre-screen employees for hiring and an employer may not demand more or different documents than an employee chooses to present, provided that the documents presented are qualify under the I-9 requirements. The employer must accept any document from List A or combination of documents from Lists B and C, at the employee's discretion.

Standards of Review

The employer must review and accept documents that reasonably appear to be genuine and to relate to the person presenting them. Employers may reject documents it they do not reasonably appear to be genuine and ask employees who present questionable documentation for other documentation that satisfy the I-9 requirements. Employees who are unable to present acceptable documents should be terminated. Employers who choose to retain such employees may be subject to penalties for improper completion of the form or for "knowingly continuing to employ" unauthorized workers if such workers are in fact unauthorized.

Form I-9 is unnecessary for the following:

1. Employees hired before November 6, 1986, and continuously employed by the same employer;
2. Individuals performing casual employment who provide domestic service in a private home that is sporadic, irregular or intermittent;
3. Independent contractors;
4. Workers provided to employers by individuals or entities providing contract services, such as temporary agencies

Retention of I-9 Records

An employer must retain the I-9 form of each employee either for three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later. All current employees, therefore, must have I-9's on file with the employer. Upon request, all Forms I-9 subject to the retention requirement must be made available to an authorized official of the Department of Homeland Security, Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practices of the Department of Justice.

Missing I-9 Forms

An employer who discovers that an I-9 form is not on file for a given employee should request the employee to complete section 1 of an I-9 form 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 of risk being subject to penalties for "knowingly" continuing to employ an unauthorized worker if the individual is not in fact authorized to work.

Discovering an Unauthorized Employee

An employer who discovers that an employee has been working without authorization should re-verify work authorization by allowing such an employee another opportunity to present acceptable documentation and complete a new I-9. However, employers should be aware that if it knows or should have known that an employee is unauthorized to work in the United, they may be subject to penalties for "knowingly continuing to employ" an unauthorized worker.

Responsibility of the Employee

Employees need to provide the information requested in Section 1. Employees must sign and date this Section of the Form I-9 when completed.

Employer Review and Verification

The second part of the form requires the employer to list the documents that were produced by the worker to verify his or her identity and employment eligibility. There are three groups of documents that a worker may use for this purpose. The documents that can be presented by employees are listed on the reverse side of the Form I-9. A worker may choose to provide a List A document (which establishes both identity and work authorization), or he/she may choose to provide one List B document (which establishes identity) and one List C document (which establishes work eligibility). Documentation must be rejected if it is expired, with two exceptions: the U.S. passport (a List A document) and all List B documents. Employers who fail to complete the Form I-9 or who hire or continue to employ workers they know are unauthorized to work in the United States may be subject to civil and, in certain cases, criminal penalties.

Employers cannot refuse to hire an individual because the individual's document has an expiration date.

Original Documents Only

The employer or employer's representative/agent must personally review original document(s) that demonstrate an employee’s identity and eligibility to work in the US. Exception: List C, #3, a certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the US bearing an official seal is acceptable.

Receipt Rule

Employees who do not possess the required documentation when employment begins may not submit receipts showing that they have applied for initial applications for documents or for applications for extension of documents. An employer may only accept receipts for limited circumstances

Updating and Verification

Re-verification requirement - employers are required to re-verify employment eligibility when an employee's employment authorization (indicated in Section 1) or evidence of employment authorization recorded in Section 2 has expired. An employer may also re-verify employment authorization, in lieu of completing a new I-9, when an employee is rehired within three years of the date that the I-9 was originally completed and the employee's work authorization or evidence of work authorization has expired.

Re-verification Process

No later than the date that employment authorization or employment authorization documentation expires, employers must re-verify employment authorization on Section 3 of the I-9, or by completing a new I-9 form to be attached to the original I-9. To re-verifyexpired status (Section 1) and/or expired work authorization document(s) (Section 2), an employee may present any currently valid List A or List C document. Remember: Receipts showing that the employee has applied for an extension of an expired employment authorization document is not an acceptable. (See Receipt Rule.)

Rehires

Employers may re-verify information of an employee rehired within 3 years of the date of the initial execution of the Form I-9 as an alternative to completing a new Form I-9. If the rehire's basis of employment eligibility, as listed on the retained I-9, remains the same, the employer must update the previously completed I-9. If the basis of work eligibility has expired, the employer must re-verify. To update or re-verify on the previously completed I-9, employers must complete Section 3 items A (name), B (date of rehire), and C (new documentation) in full, as applicable. In this section, as in Section 2, it is important that the person who actually examines the documents on behalf of the employer personally sign and date the attestation provision at the bottom of the form.

Copying of Documentation

An employer may, but is not required to, copy a document (front and back) presented by an individual solely for the purpose of complying with the I-9 verification requirements. If such a copy is made, it must be retained with the Form I-9. The copying of any such document and retention of the copy does not relieve the employer from the requirement to fully complete Section 2 of the Form I-9. If employers choose to keep copies of I-9 documentation, then it should be done for all employees, and the copies should be attached to the related I-9. Employers should not copy the documents only of individuals of certain national origin or citizenship status.

Interim Employment Authorization

The Department of Homeland Security is required to adjudicate applications for employment authorization on Form I-765 within 90 days from the date of receipt of the application by the U.S. Citizenship and Immigration Services. Failure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days.

How to Document Extensions of Stay for Certain Nonimmigrants Continuing Employment with the Same Employer

The following nonimmigrants with pending applications to extend their stay are automatically authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay: A-3s, E-1s, E-2s, G-5s, H-1s, H-2As, H-2Bs, H-3s, Is, J-1s, L-1s, O-1s, O-2s, P-1s, P-2s, P-3s, aliens having a religious occupation pursuant to 8 C.F.R. 214.2(r), and TNs.

Penalties for Prohibited Practices

1. Employer Sanctions - Civil Penalties - The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) is authorized to conduct investigations to determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and failing to properly complete, present or retain the Employment Eligibility Verification form (Form I-9) for newly hired individuals.
2. Hiring or Continuing to Employ Unauthorized Alien(s): an employer found to have knowingly hired, recruited or referred for a fee, or continued to employ, an unauthorized alien for employment in the United States shall be subject to an order to cease and desist from the unlawful behavior and to pay a civil fine.
3. Failure to Comply with Form I-9 Requirements: Employers who fail to properly complete, retain, and/or present Forms I-9 for inspection as required by law may be subject to a civil penalty for violations occurring on or after September 29, 1999 from $110 - $1,100 per employee whose Form I-9 is not properly completed, retained, and/or presented. For violations occurring before September 29, 1999, civil penalties range from $100 to $1,000. In determining the amount of the civil penalty, the following factors are considered: size of the business of the employer being charged; the good faith of the employer; the seriousness of the violation; whether or not the individual was an unauthorized alien; and the history of previous violations of the employer.

Employer Sanctions - Criminal Penalties

1. Engaging in a Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States, after November 6, 1986, (e.g. expiration of work authorization), may be fined up to $3,000 per unauthorized employee and/or face up to 6 months of imprisonment.
2. Engaging in Fraud or False Statements, or Otherwise Misusing Visas, Immigration Permits, and Identity Documents: Persons who knowingly use fraudulent identification documents, identity documents that were issued to persons other than themselves, or false attestations for the purpose of satisfying the employment eligibility verification requirements, may be fined and/or imprisoned for up to 5 years.
3. Civil Document Fraud: It is unlawful for any person or entity knowingly to engage in any of the following activities
4. Unlawful Discrimination: If an Office of Special Counsel for Unfair Employment-Related Discrimination (OSC) or Equal Employment Opportunity Commission (EEOC) investigation reveals employment discrimination covered by the Immigration and Nationality Act, the employer will be ordered to cease the prohibited practice and may be ordered to take one or more remedial steps. Employers may also be ordered to pay civil monetary penalties of $250 - $2,000 per individual discriminated against for the first offense, $2,000 - $5,000 per individual discriminated against for the second offense, $3,000 - $10,000 per individual discriminated against for subsequent offenses.
5. Document Abuse: Where employers are found to have requested more or different documents than an employee has chosen to present from List A or Lists B and C, they may be fined $100 - $1,000 for each individual determined to have suffered such document abuse.