In the current climate of immigration reform, it is especially important for employers to verify the eligibility of their employees. Under Federal Law, employers must complete and retain an I-9 form for each employee. The I-9 is the form where an employee provides identifying information and the employer certifies that it has verified that information. The form is retained by the employer, not filed with the government.
The I-9 consists of three sections. In section 1 the employee provides identifying information and attests to his or her eligibility for employment in the United States. Although the employee must complete section 1 before starting work, it is the employer who is responsible for it. An employee’s failure to sign, date, or attest to his or her status can expose the employer to fines. Therefore the employer should carefully review the entire form, including section 1.
Section 2 is where the employer certifies that documents establishing the employee’s identity and work eligibility have been reviewed and verified. The I-9 lists acceptable documents, which the employee can choose from. The employer should not demand any specific document. The employer should not demand more documents than are minimally necessary to establish the employee’s identity and work eligibility. While not required, it is advisable that the employer make photocopies of the documents, to protect himself.
Section 2 may be completed within 72 hours of the start of work, but the safest practice is complete it before work begins. Section 3 is used to update expired employment authorization documents or when re-hiring an ex-employee.
Filling out the I-9 is only the beginning; document retention is just as important. An employer must keep an I-9 for each employee who has started work within the last three years or for one year following the termination of work, whichever is later. I-9 forms should be kept in separate files, not in the employees’ personnel files. This will save time when conducting self-audits or preparing for a government audit. Periodic self-audits will ensure that the I-9 files remain complete and up to date. A separate chronological “tickler” file should be maintained to ensure that any expiring work eligibility documents are updated and re-verified by the employer.
Disregard of the I-9 process could result in fines of up to $10,000 and incarceration for up to six months.