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Editor's Note: The U.S. Department of Homeland Security (DHS) has announced several temporary policies regarding Form I-9 employment verification due to the COVID-19 outbreak. See Temporary Policies Related to COVID-19


Background

The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers, regardless of size, to complete a Form I-9 upon hiring a new employee to work in the United States. Reverification of eligibility for employment in the United States may also be required under certain circumstances.

The federal government uses E-Verify to enhance enforcement of federal immigration law. E-Verify is mandatory for federal contractors with contracts containing the Federal Acquisition Regulation (FAR) E-Verify clause, and some states require the use of E-Verify for employers. Other employers may choose to use E-Verify voluntarily to supplement Form I-9.

Federal Law

In 1986, Congress enacted IRCA in an effort to address the problem of people illegally immigrating to the United States and becoming employed by U.S. employers. IRCA requires all employers, regardless of number of employees, to verify the identity of new employees and their eligibility for employment in the United States. Civil and criminal fines and penalties may be imposed for employment of undocumented workers; individuals responsible for IRCA compliance can be held personally liable. IRCA also prohibits discrimination based on citizenship or national origin.

IRCA prohibits an employer from:

  • Knowingly hiring an alien who is not authorized to work.
  • Hiring any individual without verifying identity and work authorization.
  • Continuing the employment of a person if the employer knows or should know that the person is not authorized to work.
  • Knowingly forging, counterfeiting, altering or falsifying any document to satisfy any immigration-related requirement.
  • Knowingly using, accepting or receiving any false document to satisfy any immigration-related requirement.
  • Discriminating in hiring or firing against a citizen or an intending citizen based on national origin or citizenship status.
  • Intentionally requiring an employee to present any specific document or combination of documents for Form I-9 purposes.
  • Intentionally requiring an employee to present more or different documents than are minimally required for the employment verification process.
  • Intentionally refusing to honor documents that reasonably appear to be genuine.

Employment verification is not required for people hired prior to November 7, 1986. Employees, including individuals in the country illegally, have grandfathered status if their employment began prior to November 7, 1986, and "continues." Employment is "continuing" when an employee transfers within the company to another location, returns from an employer-approved paid or unpaid leave of absence, is recalled from a layoff that did not result in termination of employment, or is employed by a related or successor employer. Employees lose grandfathered status when they are lawfully terminated by the employer, quit or do not have a reasonable expectation of re-employment.

The U.S. Department of Homeland Security (DHS) revises Form I-9 occasionally, and employers must use the current version of Form I-9 for new hires and reverification. Employers can find the most current form on the U.S. Citizenship and Immigration Services (USCIS) website. A Spanish-language version of Form I-9 is available for use in Puerto Rico only.

See:

Form I-9 Employment Eligibility Verification

USCIS I-9 Central

Handbook for Employers: Guidance for Completing Form I-9

Completing Form I-9

An employee must complete Section 1 of Form I-9 by his or her first day of work. The employer must complete Section 2 of Form I-9 by the end of the third business day, or within 72 hours after employment commences, even if the employee is not scheduled to work for some or all of that period. For persons hired for three days or less, the entire form must be completed no later than the first day of work for pay. Employers are not prohibited from completing I-9 verification before employment begins if an employment offer has been made and accepted. See Top 10 Mistakes in Handling I-9 Forms and Who needs to complete a Form I-9? Are there exceptions to the I-9 requirement?

To complete Form I-9, the employee is required to present certain documents proving identity and employment eligibility. The employee is required to complete Section 1 of the form; however, the employer is ultimately liable for proper completion of Form I‑9 and must ensure that Section 1 of the form is properly completed by the employee. See May I complete Section 1 of Form I-9 for an employee?

The employer is responsible for completing Section 2 of Form I-9 by examining the documents presented by the employee and recording the document numbers and expiration dates in the appropriate columns. The employer must then certify on the form that the documents a) reasonably appear to be genuine, b) relate to the individual and c) authorize the individual to work. Form I-9 lists the documents that are acceptable to complete the process.

Copying documents presented by the employee is permitted and is a common practice so that employers can prove compliance with the requirements of Form I-9, but there is no requirement to make and retain copies of documents. If copies are made, employers should ensure that the policy is consistently followed in all situations. It is helpful to attach the copied documents to the employee's Form I-9 so that the documents do not get separated in the filing process. The copies may be useful to correct problems identified during a periodic self-audit or in advance of a government audit. Merely photocopying documents without completing Form I-9 does not constitute compliance with IRCA. See Copying I-9 Documents: Good or Bad Idea?

Instances in which completing Form I-9 varies from the norm

In a few situations, the rules stated above may be different:

  • Reverification. If the employee's work authorization document has an expiration date, the employer must reverify the employee's right to work prior to that expiration date. Also, when an employment authorization expiration date is provided in Section 1, employers are required to reverify employment authorization on or before the date shown. According to the USCIS, "The employment authorization expiration date provided by your employee in Section 1 may not match with the document expiration date recorded by you under List A or List C in Section 2. For reverification purposes, the earlier date should be used to determine when reverification is necessary."1

The need for reverification is triggered by the document presented by the employee and by the box the employee checks in Section 1 of Form I-9. Employers should create a system to remind them when the employee's documents will expire and need to be reverified. Failure to make a timely reverification can be construed as knowingly continuing the employment of an immigrant who lacks authorization to work. Reverification is accomplished by examining a new work authorization document and completing Section 3 of the form.

Reverification is not necessary for identity (List B) documents. U.S. passports, whether valid or expired, never require reverification, nor do alien registration or permanent resident cards.

For more information on reverifying Forms I-9, see How to Update or Reverify I-9 Forms.

  • Rehires. A new Form I-9 does not need to be completed for people rehired within three years of completing a prior Form I-9. The employer can instead update the prior Form I-9 by confirming that the employment eligibility document originally presented remains valid. If it does, the employer may merely record the rehire date in Section 3 of the form. However, if a new version of Form I-9 has been issued, the employee must provide documents from the current list of acceptable documents and the employer must complete the current version of Form I-9 and retain it with the previously completed I-9. Some employers find it easier to complete a new Form I-9 for all rehires.
  • Use of agents. An employer can rely on a referral from a state employment service agency if the employer properly retains appropriate documentation of the referral certifying the employee's employment eligibility. The employer may also delegate verification obligations to a third party or agent, but the employer is ultimately liable for compliance with verification requirements and hiring prohibitions. See As an employer, do I have to complete all the Forms I-9 myself?

Retention of Form I-9 and Documents

Employers must retain an employee's completed Form I-9 for as long as the individual works for the employer. Once the individual's employment has terminated, the employer must determine how long after termination the Form I-9 must be retained, which is either three years after the date of hire or one year after the date employment is terminated, whichever is later. See How to Retain and File I-9 Forms.

Remedies and Penalties

Employers must be careful not to go overboard in their employment verification practices. On the one hand, IRCA and Form I-9 require great vigilance on the part of employers. But if employers become overzealous in trying to deny employment to undocumented immigrants, they may run afoul of anti-discrimination and anti-retaliation provisions in IRCA and other federal laws—as well as similar state laws.  

Knowingly hiring or continuing the employment of an unauthorized worker (hired after November 6, 1986) may result in civil fines. See Form I-9 Inspection Overview.

The IRCA discrimination provisions do not apply to employers with three or fewer employees, but employers should not view that as a license to discriminate. State laws against discrimination on these bases often apply to all employers, regardless of how many employees they have. IRCA discrimination provisions prohibit retaliation against people who initiate, assist or participate in discrimination charges.

It is also unlawful for an employer to specify what documents an employee may present to prove identity or employability. An employer may not insist on seeing more documents than are minimally necessary to complete Form I-9. The employer may not refuse to accept documents that appear to be reasonably genuine. Collectively, these amended discrimination provisions are referred to as "document abuse." The document abuse prohibitions apply to all workers, regardless of citizenship or immigration status.

Paperwork violations (including failing to properly complete, retain or make Form I-9 available for inspection) may result in a penalty of $234 to $2,332 for each individual for whom verification was improper or omitted.

The amount of any penalty is determined based on the size of the business (revenue, payroll and number of employees), the good faith of the employer, the seriousness of the violation, whether the employee was unauthorized and the history of the company with regard to previous violations. A good-faith attempt to comply with the requirements of IRCA may be sufficient to avoid penalties (except when the employer fails to correct deficiencies within 10 days of notice by the DHS or is engaging in a pattern or practice of violations).

An employer that is found to have engaged in a pattern or practice of knowingly hiring undocumented immigrants (or that continues to employ people in the country illegally despite knowing they are not authorized to work in the United States) may be subject to fines, six months' imprisonment or both.

Individuals who use fraudulent documents (or documents that belong to another person) to verify employment eligibility (document fraud) may be fined, imprisoned for up to five years or both.

Employers found to have engaged in unfair immigration-related practices may be required to hire or reinstate (with or without back pay) employees subjected to the discrimination, post notices regarding employee rights and employer obligations, and educate personnel involved in hiring and employment verification as to the requirements of the law.

The DHS uses the criminal provisions of the U.S. code to enforce immigration law, and in situations where the DHS believes that an employer is knowingly employing undocumented immigrants, a criminal indictment may result. In addition, if an employer's Form I-9 compliance is very poor, or if an employer employs a substantial number of undocumented immigrants, the DHS may conclude that the employer should have known that those workers were not authorized to work in the U.S. even though they may have presented documents that reasonably appeared to be genuine. It is a crime to:

  • Bring or attempt to bring an undocumented immigrant to the United States other than through a DHS-designated port of entry.
  • Transport or attempt to transport or move such undocumented immigrant within the United States.
  • Conceal, harbor or shield from detection, or attempt to conceal, harbor or shield from detection, such undocumented immigrant .
  • Encourage or induce an undocumented immigrant to come to, enter or reside in the United States, knowing or in reckless disregard of the fact that it will violate the law.
  • Engage in any conspiracy to commit any of the preceding acts, or aid or abet the commission of any of the preceding acts.
  • Knowingly hire at least 10 undocumented immigrants within a 12-month period.

Possible penalties for these violations range from five to 20 years' imprisonment.

See:

Form I-9 Fines Raised for 2020

ICE Planning Surge of I-9 Audits This Summer

The Difference Between ICE Raids and Audits

The good-faith provision of the law, which allows people committing technical or procedural failures on a Form I-9 up to 10 days to correct such failure without penalty, does not apply to a person or entity that has engaged in or is engaging in a pattern or practice of employing, recruiting or referring unauthorized workers. See 20 Years Later: The Virtue Memo and 'Good Faith' Still Critical to I-9 Compliance.

Auditing and Correcting Form I-9

To ensure compliance with the law, employers must accurately complete Form I-9 at the outset. Mistakes happen, however, and HR professionals may later discover errors on these forms. It is good practice to periodically audit and make any necessary corrections to the I-9s. Some Form I-9 errors are technical and can be corrected, but others are substantive and could require new I-9s in addition to the original forms. Periodic self-audits and corrections may assist employers in demonstrating a good-faith effort to comply with the law in the event of a government audit.

See:

Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits

USCIS: Correcting Form I-9

Self-Auditing Your I-9 Forms? Know These Rules

How to Conduct an I-9 Audit

E-Verify

E-Verify is an Internet-based system operated by the DHS in partnership with the Social Security Administration (SSA). E-Verify allows participating employers to electronically verify the employment eligibility of their newly hired employees.  

Contractors with a federal contract that contains a FAR E-Verify clause must use E-Verify for their new hires and all employees (existing and new) assigned to the contract. Additionally, federal contractors that have a contract that contains the FAR E-Verify clause must follow special rules when completing and updating Form I-9. See E-Verify Employer Resources and E-Verify for Federal Contractors.

The E-Verify process includes the following steps:

  • The employer enters the employee's information from Form I-9 into E-Verify and submits the information to create a case.
  • E-Verify compares the information to records available to the U.S. Department of Homeland Security and the Social Security Administration, including:
    • U.S. passport and visa information.
    • Immigration and naturalization records.
    • State-issued driver's licenses and identity document information.
    • Social Security Administration records.
  • E-Verify sometimes displays a photo for the employer to compare to the photo on the employee's document to ensure that the document photo has not been altered.
  • E-Verify provides one of the following case results:
    • Employment Authorized - The employee's information matched records available to SSA and/or DHS.
    • Verification In Process - This case was referred to DHS for further verification.
    • Tentative Nonconfirmation - Information did not match records available to SSA and/or DHS. Additional action is required.
    • Case in Continuance - The employee has visited an SSA field office or contacted DHS, but more time is needed to determine a final case result.
    • Close Case and Resubmit - SSA or DHS requires that you close the case and create a new case for this employee. This result may be issued when the employee's U.S. passport, passport card or driver's license information is incorrect.
    • Final Nonconfirmation - E-Verify cannot confirm the employee's employment eligibility after the employee visited SSA or contacted DHS.

If the E-Verify system issues a Tentative Nonconfirmation (TNC) in response to a query, the employer must provide the employee with a notice generated by E-Verify, as well as information on how to contest the TNC. If the employee elects to challenge the TNC, the employer is required to provide the employee with a referral letter issued by E-Verify containing instructions and contact information. The employee is allowed eight federal government workdays to contact the appropriate federal agency. An employer is not allowed to terminate or take any adverse action against the employee until it receives a Final Nonconfirmation or a notice that the employee has decided not to contest the TNC.

State Laws Concerning Verification of Eligibility for Employment

Many states have enacted laws requiring employers doing business with the state to verify the legal status to work in the United States of each employee. Employers should verify state law requirements regarding immigration and employment in the states where they hire employees.

Several states have also enacted laws that require either all or certain employers to register for and use E-Verify. For all states in which E-Verify legislation has not yet been enacted, E-Verify enrollment is voluntary. See Multi-state Law Comparison Tool.

The development of state law in this area changes constantly as federal, state and local governments attempt to deal with issues related to immigration. Accordingly, readers are encouraged to research the current status of federal, state and local law when attempting to comply with standards for verification of eligibility for employment, and especially when taking actions that may result in denial of employment or termination of employment based on violation of immigration law standards.

Templates and Tools

Resources

What You Need to Know About... Form I-9

Forms

I-9 Form

I-9: I-9 Audit Checklist

I-9 Reverification Memo

I-9 Audit Procedure

Presentations

Form I-9 Training for New Managers: Understanding and Completing the Form I-9

 

Endnote
1 U.S. Citizenship and Immigration Services. (2016, February 25). Completing section 3, reverification and rehires. Retrieved from https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-section-3-reverification-and-rehires

 


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