Form I-9

Section 274A(a)(2) of the Immigration and Nationality Act makes it unlawful to continue to employ any person in the United States if the employer knows, though either actual knowledge or constructive knowledge, that the employee is not work-authorized.  Constructive knowledge is a concept where a person is treated as having actual knowledge of a fact if they reasonably should have known about the fact from the surrounding circumstances.  For instance, even if the speed limit is not posted on every block of a residential street, a person still has constructive knowledge of the speed limit

However, the United States constitution does not allow employers to discriminate against persons based on race or national origin; therefore employers must find a balance between protecting their interests and respecting employees’ rights.  To avoid violating anti-discrimination laws, an employer should process each and every employee in the same manner.  You should contact your employment attorney to validate your employment procedures.

For almost all employees, Section 1 needs to be completed by the employee before the end of their first day of employment.  Section 2 needs to be completed within 3 business days of the date employment begins. 

• The last page of the I-9 application lists acceptable documents. 
• With the exception of photocopies of certified birth certificates, all documents must be in the original.
• Even though it is not required that the employer keep photocopies of the submitted documents, they may choose to do so.
• Employers cannot specify which documents they will accept from an employee.  Specifying the acceptable documents would violate anti-discrimination laws.

• If the employee cannot present the required documents within 3 business days, he or she must produce a receipt showing that he or she has requested the documents and the actual document must be presented within 90 days. 
• If the employee has not produced the documents by the 90th day or if he or she has not turned in a receipt within the 3rd business day, the employer may should take the employee off payroll.
• To avoid violating anti-discrimination laws, employers must follow the same procedures for all employees.
  

The Form I-9 needs to be updated or reverified if:

• the employee’s name has changed;
• the employee has been rehired within 3 years of the original completion date of the Form I-9; or
• the employee’s work authorization is about to expire.

No.  However, the Department of Homeland Security (DHS) regulations require that all non-U.S. citizens notify DHS of changes of address within 10 days of such change.  The USCIS may be notified online or by mail using Form AR-11.

Employees are not required to carry their Form I-9, but U.S. immigration laws require every foreign national age 18 or older to carry proof of their lawful registration while in the United States.  Failure to carry documentation of status is a misdemeanor, punishable by fines up to $100, up to 30 days in jail, or both.

There are two main ways that the government discovers that an employee does not have employment authorization.  First, DHS may request an employer’s I-9 forms to audit the work authorization of their employees.  Second, when processing W-2 forms, the Social Security Administration (SSA) may run across a name and social security number that do not match their records.  The SSA will send an employer a “no-match letter,” informing the employer of the discrepancy.

Previously, the “no-match letters” were only used for SSA administrative purposes, but  DHS has begun to use the letters as evidence of constructive knowledge.  DHS reasons that the letter informs that employer that the employee’s name and social security number may be falsified and the employer has the burden to verify the employee’s identity and work authorization.

• Failure to properly complete and retain the Form I-9 subjects the employer to civil penalties ranging from $110 to $1,100 for each I-9.
• Civil penalties for the employment of unauthorized aliens range from $275 to $2,200 per person for the first offense; $2,200 to $5,500 per person for the second offense; and $3,300 to $11,000 per person for each subsequent offense.
  • If the situation involves an employer with a pattern or practice of intentionally hiring unauthorized employees, then criminal penalties can include fines up to $3,000 for each person and imprisonment of not more than six months.

In light of the foregoing information, The Bae Law Group recommends the following practices.

1. Follow written employment policies.
• Having employment policies and procedures will help HR managers treat every employee equally.
• Written procedures can be used to show an employer’s good-faith efforts to comply with Federal law as well as protect against discrimination charges.

2. Keep track of employees’ work authorization expiration dates.
Create a system that alerts the HR manager three months before an employee’s authorization date is going to expire.  If employment will continue, the employment authorization needs to be extended or a new employment authorization application should be submitted to Customs and Immigration Services. 

3. Train employees.
• Teach HR personal how to process and maintain Form I-9s correctly. 
• Train supervisors so they know how to react if there is a worksite inspection.
• Inform employees of their rights and responsibilities as an employee such as submitting I-9 documentation and carrying applicable documentation such as proof of immigration status.

4. Keep superior records.
Retain any documents that show an effort to comply with the laws.