TOP 10 DO’s and DON’TS WITH I-9’S
If you have been following the Presidential debates lately, immigration and immigration reform are hot button topics. The number of immigrants, both legal and illegal that flood our shores each year have a direct impact on business, contractors, and those employed to conduct your business. This article is not meant to be a social commentary on the immigration issue. I will leave that to far wiser folks. However, as an employer, you have a legal obligation to employ only those individuals who are authorized to work in the U.S.
In 1986, the Immigration Reform Control Act (the “Act”) was passed which required all employers to verify the employment eligibility of those seeking to perform employment in the United States. The burden of proving employment eligibility falls equally upon the employer and the employee. To assist in the process, the Act set forth what is called the “Employment Verification Form”, more commonly known as the I-9. The form can be completed either manually (paper form) or directly on line.
Do not get sloppy with your I-9 Employment Verification Forms! In the past 3 years, the U.S. Citizenship and Immigration Services (“USCIS”) has initiated a horde of workplace audits to make certain employers are in compliance with the I-9 requirements. The USCIS is also turning to criminal code prosecutions rather than just handing out civil penalties in an effort to heighten public awareness of an employer’s obligations. The agency says the new focus on employers, rather than employees is “to target the root cause of illegal immigration.”
Aside from the threat of criminal sanctions, poor I-9 documentation and compliance can cost an employer $1,000.00 per worker, and knowingly hiring an illegal worker can result in fines up to $10,000.00 per worker. Also, be aware that the I-9 form has changed throughout the years and an employer using an out of date form, even in good faith, is subject to risk. The newest version of the I-9 form can be found at www.uscis.gov/I-9.
To sidestep potential problems in the I-9 arena, follow these simple TOP 10 Do’s and Don’ts:
- DO require all new hires to complete and sign Section 1 of the I-9 form on their very first day of work.
- DON’T ask an applicant to complete the I-9 prior to making a job offer. Un-hired applicants will likely claim they were discriminated on the basis of the information sought in the I-9 form. It’s a headache you don’t need or want!
- DO carefully review all employee documents to make certain they are on the new version of acceptable documents listed on the newest version of theI-9 form and that they are genuine.
- DON’T ask a new hire for a specific document or for more than is required under the I-9 form. It is the employee’s responsibility to produce the correct complying forms.
- DO set up consistent procedures for completing the I-9 form and make certain you train all managers, supervisors, or HR individuals on that procedure.
- DON’T consider the expiration date of any information contained in complying documents when making a hiring or firing decision.
- DO make and retain copies of all documents produced by the employee for I-9 compliance.
- DON’T forget to set up an “early warning” system to follow up on documents that may be expiring. Having checked the document in the beginning will not be a defense if the document has lapsed and the employer does not follow up to ensure the worker is still authorized to work in the United States.
- DO keep copies of all I-9 documents during the duration of an employee’s employment. Further, when an employee is terminated make certain you keep copies of all documents for at least 3 years.
- DON’T file away the I-9 form in an employee’s regular personnel file. This is the first place a disgruntled employee will turn when he or she is terminated and wants to claim the decision was in any way motivated by his or her national origin. Keep the documentation in a separate file, much in the same manner you segregate the employee’s medical history/documents.
With over 30 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by evolving immigration requirements. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website at www.boznoslawoffice.com