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FORM I-9
All employers are required by the federal Immigration Reform and Control
Act to verify the employment eligibility and the identity of all employees
who were hired after November 6, 1986, to work in the United States1.
This requirement is accomplished when the employer and the employee complete
the federal Form I-9. This law applies to all employees regardless of
their citizenship. While there are a few exceptions to this requirement
for domestic services employees under certain conditions and for services
provided by independent contractors, these exceptions will rarely be applicable
to small retail businesses. In short, if you hire someone, be sure to
complete the Form I-9.
The Bureau of U.S. Citizenship and Immigration Services administers this law and provides the Form I-9 as well as a Handbook for Employers (M-274) the most current versions of which are both dated 11-21-1991. As with all federal forms these will change so you will want to check their web site from time to time to be sure you are using the current form2.
This federal statute requires that a new employee complete their portion of the Form I-9, Section 1, no later than the end of their first day of work. The employer then must complete Section 2 of the Form I-9 by the close of business of the employee's third day of employment. You do not have to have prospective employees complete Form I-9, only those people you actually hire. While there is no specific requirement on where the Form I-9 must be stored, it is a good idea to place it in the employee's personnel file3. Note that you do not file the Form I-9 with any governmental agency. The official requirement for retention of the Form I-9 is either three years after an employee is hired or one year after an employee is terminated, whichever date is later. That is the official requirement, however, many attorneys suggest that you retain all personnel records for seven years after the termination of employment just to be safe.
Employee's Responsibility - Section 1
By the end of the first day of work the employee must complete and sign Section 1 of Form I-9. You do not have to verify the information in Section 1. You, the employer, are responsible for having the employee complete Section 1 and the employee's signature makes the employee responsible for the accuracy of the information provided to you.
Employer's Responsibility - Section 2
By the close of business on the third working day after an employee is hired the employer is responsible for completing Section 2. The employer must supply the employee with the official list of acceptable documents which is normally found on the back of Form I-9.
The employer may not stipulate which documents he will accept or not accept, but the employer must record the appropriate information about each document provided by the new employee. The employer may not request different or additional documentation than what is specified in Lists A, B, and C, rather she must accept the documents presented by the employee. You, the employer, are also responsible for examining the documents to see if they appear to be reasonably authentic and apply to the employee completing Form I-9. You are not expected to be an expert on documents, instead you are only required to determine if the documents appear to be reasonably authentic, however, if you question any documents you may request assistance from the nearest office of U.S. Citizenship and Immigration Services. You may not accept photocopied documents, only originals or the certified copy of a birth certificate 4. Although not required by federal regulations it is probably a good idea to make a photocopy of the documentation provided to you by the new employee and file those photocopies with the Form I-9.
If a new employee cannot produce the required documentation they cannot continue to work for you. If an employee provided you with false documentation then later corrected the falsification, e.g. a person is not authorized to work in the U.S. at the time of their employment but subsequently obtains the proper work authorization and presents the appropriate document to the employer, you are not required by federal regulations to terminate that employee, however, you can apply your company policy regarding the providing of false employment data. The important issue is to have a company policy and to apply it in a consistent manner to avoid a charge of discrimination.
Green Card
Issues
The
so-called green card refers to the Resident Alien Card, Permanent Resident
Card, Alien Registration Receipt Card, and Form I-551. All of these documents
are issued to aliens who have been granted permanent residence in the
U.S., and once granted this status is permanent. The document itself may
have an expiration date, but the status does not. An expired card may
not be used to satisfy the requirements of Form I-9. If you are presented
with a valid, current card, you as the employer are neither required nor
allowed to re-verify authorization to work in the U.S. after the expiration
date on the card.
Social Security
Card Issues
Beware
of restricted SSA cards which do not meet Form I-9 requirements. An alien
who meets the authorization to work requirements receives a SSA card which
is undistinguishable from those issued to U.S. citizens. Restricted cards
will have some type of notation listing the restriction, e.g. Valid only
with INS Authorization, Not Valid for Employment, or Internal Revenue
Service Individual Taxpayer Identification Number. Such restricted cards
are not acceptable.
Official
Inspections
The
odds of any one small business being inspected are slim, however, in these
times it is certainly possible. The important thing is to make this a
non-issue by following the regulations and properly completing the Form
I-9. Should you be inspected you will have three days to produce the original
Form I-9s. If you are to be inspected an official from the U.S. Citizenship
and Immigration Services, U.S. Department of Homeland Security, Department
of Labor, or the U.S. Justice Department will give you at least three
days advance notice.
Purchasing
a Business
If
you purchase an existing business you are considered to be a successor
in interest, and you are responsible for the accuracy and correctness
of the acquired records including Form I-9. You may simply accept the
acquired as being correct, or you may chose to protect yourself by having
existing employees complete a new Form I-9.
Keep It
Simple
At
the time you hire a new employee there are a variety of forms to complete,
e.g. W-4, I-9, and state notification of hire (in some states) as well
as your employee handbook. Plan your new employee's first day at work
and allow time to spend with that person on these administrative issues.
Have a personnel folder prepared with all of the appropriate forms. Have
a copy of your employee handbook for the employee to read and for the
two of you to review.
A note about the author: Larry Lehman is a small business consultant living in Dallas, Texas. Larry has worked in the MPC industry since 1994, he has opened, owned, and operated two MPC stores of his own, he has helped others open stores across the U.S., and he has written three of the books currently offered on this web site which address sales, marketing, and personnel issues. He is currently working on his fourth book which will discuss small retail store financial management issues. Larry can be reached at larrylehman@yahoo.com.
1 The information contained in this article should not be construed as legal advice. For competent legal advice be sure to consult an attorney who is knowledgeable in the area of law for which you have questions or concerns.
2
Their web site is at www.uscis.gov.
A printable version of Form I-9 can be found at http://uscis.gov/graphics/formsfee/forms/files/I-9.pdf.
3 You should have a formal personnel file on every employee in your business, a file in which you store the various forms and bits of information you are required to maintain by federal, state, and local laws and regulations.
4
Most American certified copies of birth certificates will have a raised
seal or multi-color seal to indicate authenticity. If you are uncertain
check with the appropriate state or with the U.S. Citizenship and Immigration
Services.
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