Peacock Tales

Volume 18, Number 2 · April 2008

Do You Have a Form I-9?

If you employ immigrant workers, you are subject to civil and criminal penalties if you don't.

by Barbara Rizzo

Historically, employment has often been magnet which attracted people to the United States. In this presidential election year, the Congressional debate of a few months ago on immigration reform has faded with economic and foreign policy concerns now in the minds of voters. Yet, the "immigrant worker" still remains an issue for every employer in the United States. Since 1986, each employer has been required to have every new employee (and in some cases, returning employees) document his identity, and the fact that he is a naturalized citizen, or is legally authorized to be employed in the United States. We take this opportunity to acquaint, or reacquaint, our clients with this obligation.

When, and how, did this all begin? The Immigration and Nationality Act (the "Act") codified the tradition of legal immigration to this country. The Immigration Reform and Control Act of 1986, added sanctions. The Act was further changed by the Immigration Act of 1990, and the Illegal Immigrant Responsibility Act of 1996.

What is now required of employers? Simply stated, each employer must verify the identity and employment eligibility of each person hired. A Form I-9 must be completed and retained for each employee. Employees must refrain from discriminating against individuals on the basis of national origin or citizenship.

Who is an "employer" under this Act? Everyone who employs another individual, including persons who recruit or refer others for work for a fee, agricultural associations, agricultural employers, or farm labor contractors, are "employers." An "employer" also in- cludes those who employ a person to perform domestic work in their homes on a regular basis.

How does an employer comply with the Act? An employer must have an I-9 form completed within three days of the employee's hire, and before the employee actually begins working. The employee fills out one section of the form, and provides the employer with original documents which confirm his identity, and his legal right to work. If the employee is unable to present the required original documents timely, he must prove that he has applied for the missing document. He then has 90 days to produce the original to the employer. The Act delineates what documents are sufficient to demonstrate both identity and employment eligibility, and those which will suffice only to establish identity.

The employer is required to complete another section of the I-9. It must retain the completed I-9 for three years after the employee begins to work, or for one year after the person's employment is terminated, whichever is later. Special rules apply for employees who are re-hired by the employer, depending on the length of the break in service. The employer is not required to file the I-9 with any government agency. However, it must be made available upon request to the Department of Homeland Security, the Department of Labor, or the Office of Special Counsel for Immigration Related Unfair Employment Practices.

Employers are subject to civil and criminal penalties if they do not comply. We urge you to comply.

Copies of the Form I-9 and an explanatory handbook for employers can be found at www.USCIS.gov.