The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from hiring individuals who are not authorized to work in the United States.
Employers must verify that new hires are eligible to work within three days of their start date by having them complete the Employment Eligibility Verification Form, Form I-9.
Employers can be held liable for failing to comply with IRCA requirements and for knowingly or intentionally hiring, or continuing to employ, unauthorized workers.
Below are some important guidelines for complying with employment verification requirements from the folks at HR411.com Their Newsletter is an incredible resource....you may want to visit their site to subscribe.
1. Supporting documents. All new hires are to complete the I-9 form and supply employment eligibility documentation, such as a driver's license, social security card, or U.S. passport. Acceptable forms of documentation are listed on the last page of the form. Employers must examine presented documentation and record the document title(s) and number(s) on Section Two of the form. Employers are also required to sign the form, attesting that they have reviewed the presented documents and that the documents provided appear to be authentic. It's critical to only accept original documents and those that appear to be genuine and relate to the individual presenting them.
2. Photocopies. Although not required by law, it is a good practice to photocopy presented documents. Doing so demonstrates that you were in fact provided with the documents you listed in Section Two of the I-9 form. If you do decide to make photocopies of presented documents you must do so consistently for all employees. Photocopies may only be used for the verification process and should be retained with the employee's I-9.
3. The deadline. Section 1 of the I-9 form must be completed the day in which the employee begins their employment with you. Section 2 must be completed within 3 business days of the employee's start date. It is recommended that you provide new hires with a copy of the list of acceptable documents (found on the last page of the form) prior to their arrival. This will ensure that the new employee is prepared to present appropriate documentation upon starting their employment with you. One exception: if an employee is unable to present required documentation within 3 business days of their start date, the employee must produce a receipt showing that he or she has applied for the document. The employee must then present the actual document within 90 days of hire.
4. Retention. The completed I-9 form must be retained for three years following an employee's date of hire or one year following their termination, whichever is later. Because I-9s contain protected information, such as an employee's age and citizenship status, it is recommended that they are retained in a locked file separate from other personnel files. Keeping I-9s in a separate file will also help you to better prepare for an I-9 audit, since employers must make I-9s available for inspection by government officials.
5. Multi-location retention. For employers with multiple locations, personnel paperwork is not typically processed centrally. This presents the challenge of ensuring that the hiring manager at each location is properly and consistently completing I-9 forms for each new employee and is also maintaining them for as long as is required by law. If you have multiple locations, it is imperative that you have someone at each location that is trained in properly completing and storing I-9 forms.
6. Rehired employees. When rehiring an employee, you must ensure that he or she is still authorized to work in the United States. If more than three years has passed since the individual initially completed the I-9, he or she must complete a new I-9. Otherwise, you may re-verify their employment eligibility by completing Section 3 of the form. If the employee's original form of identification has expired, you will need to examine a document that reflects current employment eligibility and record the document title, number, and expiration date within this section. Note: this is only for rehired employees; current employees are not required to re-verify their employment or complete a new I-9 every unless their work authorization documents have expired.
7. Re-verification. For employees who indicated an employment authorization expiration date in Section 1, employers are required to re-verify their employment eligibility on or before the date provided. Employers are to complete Section 3 when updating and/or re-verifying Form I-9. During this re-verification process employers must accept any valid documents an employee chooses to present, whether or not they are the same documents provided initially. Employers cannot specify which documents they will accept from an employee. If the employee is not able to provide proof of current employment eligibility, you cannot continue to employ that individual.
8. Conduct internal audits. Conduct in-house audits on a regular basis to ensure compliance. Doing so will assist in identifying problems and will allow you to make corrections before you're caught off-guard by an ICE inspection. An internal audit can also help to bring attention to common errors made by managers, identifying areas in which additional training may be needed in order to ensure compliance.
9. Consider E-Verify. To go that extra step in demonstrating your efforts to only hire authorized workers, you may choose to participate in E-Verify. E-Verify is an Internet-based system available to employers by the Department of Homeland Security (DHS), free of charge. The program links to federal databases to help employers establish employment eligibility of new hires and to verify the validity of new employees' Social Security numbers. Although E-Verify offers further protection in ensuring employees are authorized to work, employers using E-Verify must still require new hires to complete an I-9. Just remember, if you do decide to use E-Verify, you must do so consistently for all new hires.
10. Develop an investigation action plan. Designate someone to be chiefly responsible for communicating with ICE agents during an I-9 audit. This individual should receive training on how to respond to the auditors' questions as well as how to properly document the visit. To the extent possible, make and retain copies of the documents that are handed over to ICE officials, and be sure to keep a record of everything the government collects. The agency must provide three days' advance notice of their intent to inspect an employer's records. If officials show up unannounced, employers can request 3 days to make the paperwork available.
11. Penalties. Employers may be assessed civil penalties for hiring or continuing to employ unauthorized aliens, failing to comply with Form I-9 requirements, or not requiring identification at the time of hire. Failure to properly complete and retain the I-9 may result in civil penalties ranging from $100 to $1,000 for each violation. Employers may also be subject to criminal penalties for: knowingly hiring or continuing to employ unauthorized aliens; engaging in fraud or false statements; or misusing visas, immigration permits, or identification documents. Employers that hire illegal aliens can also be debarred from federal contracts.
Employers must make every reasonable effort to ensure new hires are authorized to work in the United States. By following the guidelines outlined above, employers can be prepared for an ICE inspection and ward against the stiff penalties associated with non-compliance.
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Labels: compliance, form i9 verification
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