Stephen M. Perlitsh P.C.
49 West 45th Street, Floor 6
New York, NY 10036
Phone:
Fax:
Email: stephen@perlitsh.com
Form
I-9 Employment Eligibility Verification
The Immigration Reform and
Control Act of 1986 requires employers to verify that every employee joining
their staff is authorized to be employed in the United States, either by virtue
of being a U.S. Citizen or Permanent Resident of the United States, or by
having employment Authorization from the United States Citizenship and
Immigration Service. The employer must
comply with employment verification procedures, in order to assure that they
are not employing an individual deemed not to be authorized for employment in
the
Each prospective employee must
complete form I-9, the United States Citizenship and Immigration Service
Employment Eligibility Verification form.
The form contains a checklist of acceptable documentation which may be
utilized to assure compliance with the law.
The United States Citizenship and
Immigration Service conducts audits of I-9
Applications, to assure compliance with the law. The law contains employer sanctions which
carry severe civil and criminal penalties.
Fines can be levied for mere paperwork violations, for example
completing the form erroneously. Additionally,
severe fines can be levied where it can be established by the United States
Citizenship and Immigration Service, that the employer knowingly hired or
continued to employ unauthorized workers. Accordingly, great care and precaution must
be taken when processing the I-9 form.
An employer cannot specify what
forms are acceptable for presentation, in processing the I-9. To do so could lead to fines and
penalties. Additionally, the fact that a
document utilized to establish employment eligibility for the I-9 may expire
cannot be utilized as a grounds for refusal to hire
that individual and may constitute illegal discrimination.
Section 1 of the I-9 is completed
and signed by the employee on the first day of employment. In this section, the employee states that
he/she is either a citizen or a national of the
Section 2 of the I-9 is completed
and signed by the employer. The employer
must examine the documentation presented by the employee, determine whether the
document appears genuine and verify that it is among the documents listed on
the back of the I-9 as acceptable to the United States Citizenship and
Immigration Service to verify eligibility for employment in the
The reverse side of the form I-9
containing the lists of acceptable documents for employment eligibility verification, has three separate lists. List A is a list of ten acceptable documents
that establish both identity and employment eligibility. The employee only needs to submit one
document from List A, in order to establish eligibility for employment. Among the acceptable documents included in
List A are U.S. passports whether expired or unexpired, Certificate of U.S.
Citizenship, Certificate of Naturalization, an Alien Registration Receipt Card
with a photograph of the employee, an unexpired Employment Authorization
Document issued by the United States Citizenship and Immigration Service which
contains the employee’s photograph, or an unexpired foreign passport with I-551
stamp or attached USCIS Form I-94 indicating unexpired employment
authorization.
If the employee does not possess,
or chooses not to submit a document from List A, the employee can provide one
document from List B and one document from List C. List B provides a listing of 12 documents
that establish identity, for example a Driver’s License or ID card issued by a
state which contains a photograph or information such as a name, date of birth,
gender, height, eye color and address, Voter’s Registration Card or Driver’s
License issued by a Canadian government authority.
List C provides a listing of 7
documents that establish employment eligibility. Among the acceptable documents listed are a
U.S. Social Security Card, bearing no restrictions prohibiting employment,
Certification of Birth Abroad, issued by the Department of State and an original
or certified copy of a birth certificate issued by a state county or municipal
authority.
Section 3 of form I-9 is
completed by the employer when form I-9 needs to be updated. For example, if the employee changes their
name, is rehired, or if the previous grant for employment authorization expired
and has been extended, then section 3 is executed by the employer.
The employer should maintain a
system whereby I-9 forms are updated when the documentation supporting them are
due to expire. This will help avoid a
paperwork violation of IRCA and also help avoid fines and penalties for
incomplete or inaccurate forms. It is
also recommended that the employer maintain copies of the documents submitted
by the employee to support the I-9. In
the event of an audit, the availability of these copies will establish the good
faith effort to comply with USCIS regulations.
The original I-9's and support
documentation should be maintained in a central file at one location at the
place of employment. That way, in the
event of an audit, or periodic review by the employer, the I-9's
will be easy to locate.
As with all audits, an audit of
form I-9 is not a pleasant experience.
However, the United States Citizenship and Immigration Service is required to give three days notice as to any I-9
audit. This will give the employer ample
time to locate the I-9's and prepare for the
audit. In the event that the audit
results in the issuance by the USCIS of a Notice of Intent to Fine, the Notice
will recite details as to the alleged violations and state a proposed
penalty. The employer will then have 30
days to contest the Notice and ask for a hearing before an Administrative Law
Judge. If the judge rules against the
employer, the employer has 45 days to file a petition to the Court of Appeals
requesting a review.
Although compliance with IRCA and
completing form I-9 may be difficult at times, the employer should take great
care in assuring the accuracy of the form and acceptability of the
documentation utilized in support of the form.
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