By: Rudman Winchell Attorney Matthew Cobb
The Department of Homeland Security, through U.S. Citizenship and Immigration Services, recently issued a new edition of Form I-9 on March 8, 2013. The previous edition expired on August 31, 2012, but employers had been allowed to use the expired form while the new edition was being produced. Employers should now begin using the March 8, 2013 form (which can be downloaded here) immediately, although the two previous editions (forms dated 02/02/09 and 08/07/09) will still be deemed acceptable until May 7, 2013.
The vast majority of working people have probably filled out Form I-9 at some point, but few may be familiar with its intended purpose or the complex legal dilemmas it can create for employers and human resource managers. Employers are required to complete Form I-9 upon hiring a new employee (or rehiring a former employee in certain circumstances) to verify the identity and employment authorization of that individual for employment in the United States. The Immigration and Nationality Act provides that it is unlawful for a person or other entity to hire for employment in the United States “an alien knowing the alien is an unauthorized alien” or to hire for employment in the United States an individual without complying with the Act’s employability verification requirements. The Act’s verification requirements, which are embodied in the Form I-9 process, provide that an employer must attest that an individual is not an unauthorized alien by examining documentation that establishes the individual’s identity and employment authorization. A list of acceptable documents for purposes of verification is located on the last page of the new Form I-9. List A documents, such as a U.S. passport, satisfy both the identity and employment authorization verification requirements. In contrast, a List B document, such as a state driver’s license, only establishes a new hire’s identity, and a List C document, such as a birth certificate, only verifies the new hire’s employment authorization. Accordingly, a new hire will need to produce either an acceptable List A document or a combination of acceptable List B and List C documents for the employer to certify the new hire’s identity and employment authorization. (Keep in mind that as a general rule, expired documents are unacceptable for verification purposes).
Although Form I-9 verification of identity and employment authorization through documentation review may seem like a routine and relatively innocuous task, an employer’s Form I-9s are subject to being audited by U.S. Immigration and Customs Enforcement (or “ICE”). Penalties and fines for substantive or uncorrected errors on Form I-9s can range from $100—$1100 for a first offense. Similar penalties can also be imposed for failure to complete Form I-9. (Here is an overview of ICE’s Form I-9 inspection process).
Further, the Immigration and Nationality Act broadly prohibits discrimination based on an individual’s national origin. This prohibition applies to the Form I-9 document review process. An employer is required to accept documentation presented by a new hire if the documentation relates to the individual presenting the document and reasonably appears on its face to be genuine. Federal regulations provide that an employee must be free to present any List A document or any combination of List B and List C documents that satisfy Form I-9’s requirements. An employer cannot require a new hire to present a specific document or more documentation than is necessary to complete Form I-9’s verification requirements. Employers who fail to comply with the Act’s anti-discrimination provisions are subject to enforcement actions by the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices. Such enforcement actions can be costly and time consuming. For example, a staffing agency in Illinois recently paid $8400 to settle an immigration-related discrimination claim with the Department of Justice related to its identity and employment authorization verification process.
As the above discussion demonstrates, compliance with the Immigration and Nationality Act through proper completion of Form I-9 is an important process for every employer. The first step in compliance is, of course, using the new edition of Form I-9. For questions or concerns regarding Form I-9 compliance, please feel free to contact one of our experienced employment law attorneys.