Five Keys to Understanding the I-9 Process

Form I-9 has been used since 1986 to verify the legal status of new hires to work in the United States, the paperwork child of that year’s Immigration Reform and Control Act (IRCA), which granted amnesty to millions of undocumented U.S. residents.

Form I-9 is legally required of all employees in the United States (except some hired before IRCA and still working at the same business), so it is essential for employers to understand the form and its requirements. Here are five key factors:

First, the current Form I-9 is dated March 31, 2013, which means it expired at the end of this March (2016). The administering agency, the United States Immigration and Citizenship Services (USCIS), however, says to continue using the expired form until a redesigned form is approved by OMB, the Office of Management and Budget. (All federal forms expire after three years as a result of the Paperwork Reduction Act.)

Second, the form is not submitted to any federal agency but retained by the employer for three years after the date of hire or one year after the end of that person’s employment, whichever is later. Thus, if someone works for you for one week and quits, you must retain the Form I-9 on file for another three years. If that person quits after five years, you must retain the form for one more year.

Third, Form I-9 requires the submission of documents by the new hire to verify his or her eligibility to work in the United States. Though the verifying documents that can be submitted are classified according to their weight, so to speak, you as the employer cannot demand which documents the job applicant or new hire must submit. Verifying documents are classified as A, B or C and are listed on the last page of the nine-page I-9. Some documents show both identity and employment authorization (List A). Other documents show identity only (List B) or employment authorization only (List C). One A document is sufficient; otherwise, the new hire must submit one each from B and C.

Fourth, you as the employer – and the new hire – have three business days to complete Form I-9, which requires your verifying the submitted documents and signing the form. The new hire must also sign. Thus if a person begins work on Monday, the form must be completed by Thursday. As a general practice, many employers commence the I-9 verification process before the start of work for the new hire. However, you cannot begin the process until a job is offered and the person accepts.

Fifth, an arm of USCIS called ICE (Immigration and Customers Enforcement) conducts periodic Form I-9 inspections, especially if the agency suspects you’ve hired persons who lack the proper A, B and/or C documents, or has been alerted by someone that such may be the case. ICE generally must give three days’ notice of an I-9 inspection but can require that you bring the documents to a location of its choice. Generally, however, inspections are done on site. Fines for noncompliance range from $110 per form up to $1,100 per form if missing and filled out inaccurately and from $375 per worker up to $3,200 per work for fraud.

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