Personnel e.bulletin – November 2015
Tips for Completing the I-9
Prepared for the PHCC Educational Foundation by TPO, Inc.
Employers must complete an I-9 Form for every person hired to work in the United States in return for wages or other remuneration. See http://1.usa.gov/1QpZSof for a handbook on completing the I-9.
The current I-9 (http://www.uscis.gov/i-9) was revised March 8, 2013, and expires March 30, 2016.
Section 1 of the form must be fully completed by the employee no later than the date of hire and no earlier than the date of acceptance of the job. If the employee cannot complete Section 1 without assistance, or he or she needs a translation of the form, someone may assist him or her. The preparer or translator must read the form to the employee, assist him or her in completing Section 1, and have the employee sign or mark the form in the appropriate space. The preparer or translator must then complete the Preparer/Translator Certification block on the form.
While it may seem prescriptive to specify how each section of the form must be completed, it is important to note that failure to correctly complete the form, in total, can lead to a violation and fine. Not surprisingly, this is the single largest area of violation, and fines can top $1,100 per document.
Section 1: It is the employer’s responsibility to ensure that the employee clearly and legibly fills in the correct information and signs and dates the form. Here are a few guidelines:
• The space for indicating the employee’s maiden name cannot be left blank. Options are to provide the actual maiden name, the letters “n/a,” or the word “none.”
• Providing a Social Security number on the I-9 Form is voluntary for all employees unless the employer is participating in the E-Verify Program, which re¬quires an employee’s Social Security number for employ¬ment eligibility verification. You may not, however, ask an employee to give you a specific document with his or her Social Security number on it. To do so may constitute unlawful discrimination.
• Employees must indicate their current status, either as citizens/nationals of the United States, lawful permanent residents (green card holders), or aliens eligible to work with temporary work authorization.
Once the items required in Section 1 have been completed, the employee must sign and date Section 1.
Section 2: Section 2 of the I-9 Form must be fully completed by the employer within three business days of the first day of work. Business days are defined as days in which the company operates, whether the worker is scheduled to work or not. If you are hiring a person for less than three business days, Sections 1 and 2 of the form must be fully completed when the employee begins work.
The employee must present you with an original document or documents that establish both identity and employment authorization. The employee can choose which document(s) he or she wishes to present from the Lists of Acceptable Documents found on the reverse of the I-9 Form. Some documents establish both identity and employment authorization. These are found in List A on the I-9 Form. Other docu¬ments establish identity only – those in List B – or employment authorization only – those in List C.
As an employer, you are required to examine the original document or documents the employee presents and then fully complete Section 2 of Form I-9. The same person must both examine the document(s) and sign Section 2. The employee must be physically present during the examination of the document(s). Remember, you must examine one document from List A, or one from List B and one from List C.
If you participate in the E-Verify Program, you may accept only List B documents that bear a photograph. It is important to record the proper documentation in the correct column. Record the title, issuing authority, number, and expiration date (if any) of the document(s); fill in the date of hire and correct information in the certification block; and sign and date the form. You must accept any document or documents from the Lists of Acceptable Documents presented by the indi¬vidual that reasonably appear on their face to be genuine and to relate to the person presenting them and that are unexpired. You may not specify which document(s) an employee must present.
In specific circumstances, employers may be asked to accept a receipt in lieu of a List A, List B, or List C document if one is presented by an employee. A receipt indicating that an individual has applied for initial employment authorization or for an extension of expiring employment authorization is NOT acceptable proof of employment authorization on Form I-9. Receipts are never acceptable if employment lasts less than three business days. Some examples of receipts and temporary employment authorization documents an employee can present are briefly listed below. Please seek advice from an immigration specialist before accepting these to determine if the receipt remains a valid option for confirmation of employment.
• For all employees, a receipt for a replacement of a lost, stolen, or damaged document (from List A, B, or C) – good for 90 days from the date of hire or, for re-verification, the date employment authorization expires, at which point the actual document for which the receipt was issued must be supplied.
• For lawful permanent residents, the arrival portion of the Form I-94 or I-94A containing a Temporary I-551 stamp and photograph (List A) – good until the expiration date of the Temporary I-551 stamp or, if no expiration date, one year from the date of issue, at which point the actual Form I-551 permanent resident card/green card must be supplied.
• For refugees, the departure portion of Form I-94 or I-94A with an unexpired refugee admission stamp – good for 90 days from the date of hire or, for re-verification, the date employment authorization expires, at which point an unexpired EAD (Form I-766) or a combination of a valid List B document and an unrestricted Social Security card must be supplied.
Maintenance of I-9 Forms
Below are basic guidelines for the maintenance of I-9 Forms.
Centralize Authority – Limit the number of persons who will complete and administer I-9 Forms. Your best bet is to use a trained HR professional. If you don’t have an HR staff member, assign two people to maintain the records and make sure they have the requisite training.
Centralize Storage of I-9 Forms – Store forms alphabetically, together and not in individual employee files. Separate the forms of current employees from those of former employees. In larger companies, divide I-9s by geographic location, year of hire, and year of termination. Keep documents in one location, and secure them as you would other personnel files.
Section 3 – Updating or Re-verification – Section 3 of the I-9 Form is for updating and re-verification. If the fourth box in Section 1 is checked, then you must re-verify continuing eligibility to work on or before the expiration date of the relevant documents. If the employee fails to provide timely documentation showing current employment authorization, then employment must be terminated. Be cautious. This is one of those difficult gray areas in the I-9 process. The employer is walking a fine line between discrimination and/or document abuse violations by inquiring too much as to the specifics of the employee’s work authorization, and the danger of knowingly employing an unauthorized person.
If you use a new Form I-9, enter the employee’s name in Section 2 and complete Section 3. You need to retain only the second page of the new Form I-9 with the original.
Rehires – If an individual is rehired within three years of the initial hire date, they may use the same I-9 but must update it using Section 3. If a List C document has expired, they must update and re-verify that document or supply another. If the employee has been gone from employment for over three years or the old I-9 is invalid, a new I-9 must be completed.
Transfer – I-9s travel with the employee if he or she moves from unit to unit within a company. If the employee goes to a new company, then a new I-9 form must be completed by the new company.
Third-Party Hires – Please note that while you are allowed to have a third party complete the I-9 process for individuals working within your company, you are not released from responsibility. If you are aware that an individual is not authorized to work in the U.S., you are required to take action to terminate the employment of that individual in your company.
Retention and Inspection – I-9s must be retained for three years after hire or one year after termination, whichever is later. If a warrant to produce a company’s I-9 Forms is issued, the company has three days notice to provide the documents. Original I-9s must be made available at the location for which the warrant is issued. Where a recruiter or professional employment organization is designated by an employer to complete I-9 Forms, photocopies are allowed at the employer’s place of business.
Electronic Storage – In October 2004 modifications to the law were allowed enabling employers to fill out and store I-9 Forms electronically, if the system used for this purpose:
• Displays reasonable controls to ensure the integrity, accu¬racy, and reliability of the electronic storage system;
• Maintains reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, includ¬ing the electronic signature, if used;
• Has an inspection and quality assurance program that regularly evaluates the electronic generation or stor¬age system, and includes periodic checks of elec¬tronically stored Forms I-9, including the electronic signature, if used;
• Has a retrieval system that includes an indexing system permitting searches by any data element; and
• Has the ability to reproduce legible paper copies.
Electronic signatures are permitted if your system for capturing electronic signatures allows signatories to acknowledge that they read the attestation and attach the electronic signa¬ture to an electronically completed Form I-9. Also, the system must:
• Affix the electronic signature at the time of the transaction;
• Create and preserve a record verifying the identity of the person producing the signature; and
• Provide a printed confirmation of the transaction, at the time of the transaction, to the person providing the signature.
Please remember that if you choose to use an electronic signature to complete Form I-9 but do not comply with these standards, it may be determined that you have not properly completed Form I-9.
Correct I-9 completion is critical to remaining in compliance with immigration laws. When expanding your business to this workforce, it’s a good idea to investigate compliance further (see http://www.uscis.gov/i-9-central) to get more details on the I-9 and E-Verify system and to check with human resource and immigration specialists.
This content was developed for the PHCC Educational Foundation by TPO, Inc. (www.tpo-inc.com). Please consult your HR professional or attorney for further advice, as laws may differ in each state. Laws continue to evolve; the information presented is as of October 2015. Any omission or inclusion of incorrect data is unintentional. Please note this article is not intended to provide legal advice or to substitute for supervisor employment law training.
The PHCC Educational Foundation, a partnership of contractors, manufacturers and wholesalers was founded in 1987 to serve the plumbing-heating-cooling industry by preparing contractors and their employees to meet the challenges of a constantly changing marketplace. If you found this article helpful, please consider supporting the Foundation by making a contribution at http://www.phccfoundation.org.
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