The Immigration and Nationality Act requires employers to verify all employees’ identity and eligibility to work in the United States. Employers must complete a Form I-9 for all employees, even U.S. citizens. The form must be retained by the employer and may be requested for review by the Bureau of Immigration and Customs Enforcement (BICE) (formerly the Immigration and Naturalization Service or “INS”) or during a wage and hour audit by the Department of Labor.

Form I-9 requires the employee to produce documents showing his or her eligibility to work in the United States and the employer to examine those documents. Both must sign Form I-9. The form is then retained by the employer.

Who must complete an I-9?

• Form I-9s must be completed and retained for all employees hired after November 6, 1986.
• This requirement applies to all employers; there is no minimum number of employees.
• Not covered: casual hires, independent contractors and employees of independent contractors, domestic servants in B-1 status, and B-1 trainees on short term training programs.

How and when must the Form I-9 be completed?

• The employer must complete Form I-9 within 3 business days of hire.
• If the employee cannot produce verification documents within 3 days, he/she can have up to the 90th day of hire if he/she submits a receipt for an application of replacement documents.
• In Section 2 of Form I-9, the employer must attest that it has examined documents verifying both identity and work eligibility. The I-9 form provides lists of acceptable documents, which duplicates the lists on the I-9 Handbook for Employers (website address below).

What should employers be aware of when completing Form I-9?

• An employer may not require or specify which documents on the list an employee must present.
• Employees must present unexpired originals of these documents.
• The employer must note the identification number and expiration date (if any) of any document an employee provides.
• Employers are not required to copy and retain the examined documents, but may do so.
• The acceptable documents are subject to change, so employers should make sure that the list of documents used to complete Form I-9 is current.
• If an employee does not have the documents showing identity and work authorization, the employee may present a receipt showing he/she has applied for a replacement document or an extension.

How long do employers have to retain the Form I-9?

• Employers must retain the completed I-9 and make it available for inspection by the BICE or the U.S. Department of Labor until the later of 3 years from the date of hire or one year after termination.
• Employers are advised to have a separate file for I-9 forms for all employees rather than include them in the individual personnel files.
• Do employers have to re-verify the Form I-9?
  
  If an employee’s employment authorization expires or the Immigration Service informs the employer that authorization is insufficient, the employer must re-verify the I-9 before the employee’s work authorization expires.
• Re-verification does not apply to U.S. citizens or permanent residents (except permanent residents who have a temporary I-551 stamp in their passports). Re-verification is completed on Part C, Section 3 of the I-9 form.
• Rehires: Where a person is rehired and is still work-eligible, the employer may simply update the I-9 by completing Part B of Section 3, if the rehire is within 3 years of the date of the initial signing of the I-9.
• Employers whose employees are members of a collective bargaining unit or who belong to a multi-employer association may use the Form I-9 completed by a prior employer if the prior employer is a member of the same association, new employment is within 3 years, and the prior I-9 was properly completed.

Is there a good faith defense available to employers?

An employer may have a defense if it acts in good faith to comply with I-9 requirements. It is not a defense that the individual appeared to be a U.S. citizen and not asked to complete a Form I-9. Further, a good faith defense is not available where BICE or another enforcement agency has given notice of a violation, or where an employer engages in a pattern of verification violations.

What are the penalties for employing unauthorized foreign workers or for failing to complete Form I-9s?

• An employer who knowingly hires unauthorized workers or who continues to employ unauthorized workers may be subject to a cease and desist order with civil money penalties from $250 to $10,000 for each unauthorized worker. There are also criminal penalties for repeat offenders ,with the possibility of a maximum of 6 months’ imprisonment.
• An employer who fails to properly complete and maintain Form I-9s is liable for a civil penalty between $100 and $1000 for each individual.

Helpful references:

Handbook for employers:
http://www.immigration.gov/graphics/lawsregs/handbook/hand_emp.pdf

Frequently asked questions about employment eligibility:
http://www.immigration.gov/graphics/howdoi/EEV.htm

Disclaimer:

True, Walsh & Miller, LLP has prepared this memorandum to present general information only. This memorandum is not intended as legal advice, nor should you consider it as such. You should always formally engage a attorney of your choosing before taking actions which have legal consequences. Please feel free to contact our office if you have any questions or would like to request a legal consultation.

About the authors:

Laurie M. Johnston is a partner with Miller Mayer, LLP in Ithaca, NY. She has over 20 years experience in the area of labor and employment (management) law and has written several employers’ guides to federal and state labor law.

Carolyn S. Lee is an immigration associate with Miller Mayer, LLP. She has represented Fortune 500 companies in international corporate transactions and currently represents both employers and employees in preparing immigration filings.

(rev. 4/03)