The new Form I-9 was released on March 8, 2013 and employers must start using it exclusively beginning May 7, 2013. The purpose of Form I-9, as most of us know, is to help employers “verify our new employee’s identity and employment authorization”.
Along with Form I-9, there is E-Verify, which is an “internet based system that compares information from an employees’s I-9 to data from the U.S. Department of Homeland Security and Social Security Administration to confirm employment eligibility”.
Completing the Form I-9
Section 1 – (Employee Section): The Form I-9, the complete instructions, and the List of Acceptable Documents, all nine pages, must be given to new employees on their first day of work. The employee must fill out and sign Section 1 on their first day and should have it completed and checked by the employer before they actually start working. They need to provide their full legal name, any other names they’ve used (e.g. maiden name), current full address (P.O. Box not permitted), date of birth, attest by checking appropriate box to indicate U.S. Citizenship or other legal authorization to work in the U.S., signature and date.
The employer must review all the information the employee provided in Section 1 and ensure they have filled in all the required fields and signed and dated the form. In the case of the employee using a Preparer/Translator, the employer must ensure that section is also completely filled and signed. Employers also need to note when the employee’s employment authorization will expire and will need to remind those employees at least 90 days before the expiration that they need to reverify by presenting a List A or List C document.
Section 2 (Employer Section): Employers must complete and sign Section 2 within three business days of the date of hire (first day of work for pay) of the new employee. Employees must present original unexpired documentation that verifies their identity and employment authorization. Page 9 of 9 in Form I-9 provides the list of documents that the employee can choose to present and the employee. They must present one document form List A, or one document form List B in combination with one document from List C. List A are documents that show both identity and employment authorization such as a U.S. Passport, List B are documents that show identity only, and List C are documents that show employment authorization only.
The employer, or authorized representative, must do the following things in Section 2:
- Ensure the documents presented by the employee are on the List of Acceptable Documents
- Physically examine each document to determine if it is genuine. If it is determined the document is not genuine, tell employee and allow them to present another document from the list.
- Enter employee’s last name, first name, and middle initial from Section 1.
- Enter document title, issuing authority, document number & expiration date, from the original documents presented by employee.
- Enter the date the employee began work.
- Employer must sign and enter name, title, date, business name, business address.
- Return documentation presented to employee
Note: there are two dates in Section 2 that are required. The employee’s first day of employment and the date the employer examined the documentation presented by the employee.
Section 3 (Reverification and Rehire Section): This section must be filled out if the employee’s employment authorization or document authorization has expired, the employee is rehired within three years of the date their original I-9 was completed, or if the employee changes their name.
Penalties for violating Form I-9 law: Employers must not discriminate on the basis of national origin, citizenship, or immigration status. They must also not hire, recruit or refer for a fee aliens they know to be unauthorized to work in the U.S.
Employers who violate the law may be subject to civil fines, criminal penalties, debarment from government contracts, requirement to pay back pay or hire those discriminated against. Civil fines range from $375 per to $16,000 per worker and $375 to $16,000 per violation. Criminal penalties for engaging in a a pattern of practice of hiring, recruiting or referring for a fee unauthorized aliens range from up to $3,000 per unauthorized alien to up to 6 months in prison.
E-Verify is a companion to Form I-9 and was created to “strengthen the I-9 eligibility verification process that all employers, by law, must follow”.
The Immigration Reform and Control Act (IRCA) of 1986 prohibits employers from knowingly hiring illegal workers. To comply with this law, employers must collect information regarding an employee’s identity and employment eligibility and document that information on Form I-9. An employee must provide certain information on the form, such as name and date of birth, as well as present supporting documents.
E-Verify allows employer to verify that the information and documents that employees provide for their I-9 are valid and genuine.
So after the Form I-9 is completed, the company enters the information from the I-9 into E-Verify. The employer can compare the photo displayed on E-Verify with the documents provided by the employee. The information submitted will be compared against millions of government records and if the info matches, E-Verify will return an “Employment Authorized” result. If there is a mismatch, E-Verify will return a “Tentative Nonconfrimation (TNC)” result which the employer must print and review with the employee. The Employee can contest the mismatch which requires the employer to refer the cast in E-Verify to either the U.S. Dept of Homeland Security or the Social Security Administration. The employee then has eight federal government work days to resolve the mismatch.