Transition to New Employment Eligibility Verification Form (Form I-9)

• May 4th, 2010
• Employment Law
• No Comments

Summary:

All employers must use the new USCIS Form I-9 beginning December 26, 2007.  New employees and any existing employees who have not previously completed a Form I-9 must fill out the new Form I-9.

Common Questions/Practical Answers

1. Why is this required?  USCIS has publicly stated that they will step up workplace enforcement of U. S. immigration laws.  Revising Form I-9 and adopting a substantially revamped Handbook for Employers (the first such revision in over ten years) are part of this initiative.

2. Who must comply?  Any business, organization or sole proprietor that has any employees must comply with the new Form I-9 rules by having a completed Form I-9 on file for all employees within three (3) days of commencement of employment.

3. If I have completed a Form I-9 for existing employees prior to December 26, 2007, am I required to obtain a new Form I-9 from them?  You are not required to obtain a new Form I-9 for your existing employees unless a prior properly completed Form I-9 indicated that an employee’s work authorization is scheduled to expire.  Requiring the completion of a new Form I-9 for existing employees may violate anti-discrimination provisions of the Immigration and Nationality Act (“INA”).  Always avoid even the appearance of discrimination in interviewing and hiring new employees.

4. What if any of my employees have not completed a Form I-9 previously?  If you do not have a Form I-9 on file for any employee hired on or after November 6, 1986, a new Form I-9 should be completed immediately.

5. What documents must I see to verify an employee’s immigration status?  USCIS’s regulations provide a detailed list of the documents that are acceptable for proving (a) identity and (b) employment eligibility.  (See Question 11 below for additional resources).

6. Does this law apply to 1099 independent contractors?  Provided that the independent contractor meets the federal requirements for being treated as an independent contractor, you are not required to complete a Form I-9 for that individual.  Determining an individual’s status for tax and immigration purposes should be reviewed carefully with your tax and legal professional advisors.

7. Must I file anything with USCIS?  USCIS does not currently require anything to be filed to verify compliance; but the completed Form I-9’s of a business are subject to inspection by USCIS at any time.
 
8. What are the penalties for noncompliance?  USCIS will assess a penalty of between $110 and $1,100 for each Form I-9 that is missing or completed incorrectly, including use of an outdated Form I-9 after December 26, 2007.  Additional penalties may be assessed for hiring or continuing to hire persons who are not authorized for employment, for engaging in a pattern or practice of knowingly hiring unauthorized persons, and for unfair/discriminatory immigration-related employment practices.  Such penalties may include fines ranging from $275 to $11,000 per person, based on the severity of the offense, as well as back pay and attorney’s fees.  Title VII compensatory damages may also be imposed in cases of intentional discrimination.

9. What records must I retain?  USCIS’s regulations require that you maintain a completed Form I-9 for each employee for a period of the later of (a) three (3) years from the date of hire or (b) one (1) year from the date employment ends.

10. Are there any best practice compliance recommendations?  To limit the risk of being found by USCIS to be noncompliant, Innovative Business Law Group recommends that you not only retain copies of all Form I-9’s, but also copies of identity and employment eligibility documentation for every employee.  Form I-9’s must be kept for all employees and not only for employees who are foreign nationals.  All such information should be stored in a private and secure employee file.  All paper copies should be kept in a locked receptacle to prevent access by unauthorized individuals.  Alternatively, such documentation may be scanned into a file securely stored on a computer that is backed up daily at a secure offsite location.

11. Where can I obtain more information?  The new Form I-9, Form I-9 instructions and Handbook for Employers are available at www.uscis.gov.

12. What if I have additional immigration law questions?  As business lawyers, Innovative Business Law Group can answer your general business law questions.  For immigration law questions, Innovative Business Law Group works closely with immigration attorney Jane Devlin, Esq. (Flynn & Clark, P. C., One Main Street, Cambridge, MA 02142, www.flynnclark.com, (617) 354-1550) who has reviewed this Business Client Advisory.  We encourage you to contact her directly with any immigration law compliance questions.

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