By Karyn Rhodes, Director of Human Resource Consulting at The Hilb Group in Warwick
The Immigration Reform and Control Act prohibits the hiring of undocumented workers and employment discrimination. But the requirements for documentation and completing the Form I-9 can be tricky – and costly. To avoid penalties, employers should take the following steps during the hiring process.
The United States Citizenship and Immigration Services (USCIS) requires employers to confirm the identity of all new hires. Remember that you don’t need to complete this process for certain workers, such as independent contractors or those who provide labor to you who are employed by a contractor providing contract services like temporary agency. To verify identify, the USCIS provides a list of acceptable documents that meet the proof of identity requirement, referred to as List B documents. These include a driver’s license and ID cards. For applicants under the age of 18 who don’t have one of these forms of documentation, they can provide an alternative document, such as a school record or medical record.
Confirm Applicants’ Eligibility to Work Here
In addition to verifying an applicant’s identity, employers must also confirm the prospective employee is able to work in the US. The USCIS provides a list of documents – commonly known as List A documents – that can satisfy both the proof of identity and employment eligibility requirements, such as a US passport. But if an employee doesn’t have List A documentation and only presents confirmation of their identity (a List B document), they must also show paperwork to verify eligibility – or a List C document, such as a U.S. Social Security card or birth certificate.
Comply with Documentation Requirements
New employees have three business days from the start date of employment to produce the required proof of identity and employment eligibility documentation. If a worker can’t produce the necessary documents but has a receipt indicating that he or she has applied for them, the deadline extends to 90 days from the date of employment to provide the actual documents. All documents that applicants present must be originals and unexpired. Keep in mind the standard is reasonableness so if the documentation reasonably appears to be genuine, you can accept it; you’re not expected to be a document expert. And remember that, when verifying employee eligibility, employees must be allowed to choose from the USCIS lists of acceptable documents; as an employer, you can’t ask for specific documents.
Complete Form I-9 – Correctly
A Form I-9 is also required for new employees and all active employees hired after November 6, 1986. Effective January 22, 2017, all employers must now use the latest version of the form dated November 14, 2016. Both employees and employers must complete certain portions of the form: employees must complete Section 1 before or on the first day of employment and employers must complete Section 2 no later than three days after the first date of employment. When completing Section 2, employers should be careful to avoid making common mistakes, such as leaving lines blank, failing to sign and date the form, and providing incorrect information. The new form also contains some changes from previous versions that employers needs to be aware of, such as a middle initial requirement, PO box acceptability and a more flexible format for birth dates. And don’t forget that the forms must be updated as necessary, for example, when an employee has a name change due to marriage.
While you don’t need to keep copies of documentation employees present, unless you use E-Verify, specific storage requirements apply to the Form I-9. Specifically, the forms should be kept for the duration of employment for active employees and, for terminated employees, they should be retained for three years after the date of hire or one year after the date of termination, whichever is later. The forms should be maintained separately from employment files, and there should be one file for current employees and another for terminated employees. Paper forms can be retained on site or at an off-site facility for the required retention period, as long as you can present the Forms I-9 within three days of an audit request. To store Forms I-9 electronically, you may use any electronic recordkeeping, attestation, and retention system that complies with DHS standards, including most commercially available off-the-shelf computer programs and commercial automated data processing systems.
Complying with Immigration Reform and Contract Act requirements can be challenging, but following these five steps can help you avoid potential liability.