Important Points for Employer I-9 Compliance
The Immigration Reform and Control Act of 1986 (IRCA) requires that employers verify the identity and eligibility for employment of every employee they hire. Unfortunately, identifying whether an employee is authorized for employment can prove tedious and confusing. However, employers must resist the urge to take short cuts or ignore I-9 issues because failing to comply can lead to hefty fines and additional civil and/or criminal penalties. This article will clarify some I-9 compliance issues and offer a few internal policy pointers.
Who is an Employee?
The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors or those engaged in casual domestic employment. An independent contractor is an individual or entity who carries on independent business, contracted to do a piece of work according to their own means and methods, and are subject to control only as to results. Some factors that usually define an independent contractor include:
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Setting their own hours; Supplying their own tools and equipment; Paid on a project basis;
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Do not receive benefits such as health insurance or paid vacation.
If an individual is considered an independent contractor, an employer does not need to verify employment eligibility nor complete the I-9 Employment Eligibility Verification Form.
Verification of Employment Eligibility
The Form I-9, Employment Eligibility Verification is the requisite form to confirm the employment eligibility of workers. The new M-274 Handbook for employers is available at:
The I-9 is divided into three sections. Section 1 needs to be completed by the employee, while the employer must complete Sections 2 and 3. The most important section of the I-9, and most likely the most confusing, is Section 2. This section requires the employer to verify evidence with respect to both the identity and employment eligibility of the individual. According to the regulations, the employer must physically examine the documentation presented by the individual establishing identity and employment eligibility within three business days of the hire. The lists of acceptable documents to prove identity and employment eligibility are itemized on the I-9 form into List A, List B and List C:
List A
List A catalogs documents that are acceptable to confirm both identity and employment eligibility.
List B
List B catalogs documents that are acceptable to establish identity only.
List C
List C catalogs documents that are acceptable to establish employment authorization only. Remember that the employer must verify both identity and eligibility. Therefore, when examining the documents provided, the employer must make sure the employee has provided either a document from List A or both a document from List B and a document from List C. Although you are not required to be document experts, employers should analyze each document for obvious signs of forgery or alterations.
Potential Problem Areas
New I-9
On November 7, 2007, USCIS announced that a revised Employment Eligibility Verification Form (I-9) is available for use as well as the M-274, Handbook for Employers, Instructions for Completing the Form I-9. Key to the revision is the removal of five documents for proof of both identity and employment eligibility. They include: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); the old Alien Registration Receipt Card (Form I-151); the Reentry Permit (Form I-327); and the Refugee Travel Document (Form I-571). USCIS "encourages" use of the new form immediately, but indicates that it will not be required until notice is published in the Federal Register.
The new M-274 Handbook for employers is available at:
http://www.uscis.gov/files/nativedocuments/m-274.pdf
The new I-9 Fact Sheet from USCIS can be found at:
http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf
Internal Policy Pointer
Conducting a private, periodic, internal audit of your employee records is a good idea. An audit of your I-9 compliance procedures can identify problem areas and allow you to make corrections. While many of those problems may be simple and easy to fix, if ICE or the DOL discovers them, they could become extremely costly. Finding and correcting errors in advance of an ICE or DOL inspection not only minimizes an employer's liability by reducing the number of improper I-9's, but it also has the added benefit of demonstrating a good faith effort to comply with I-9 compliance requirements.