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• I-9
  • Verification
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• Summary

EMPLOYMENT VERIFICATION PROCEDURES

Human Resource Managers have an additional reason to understand these various visas because of employment verification (I-9 Form record keeping) provisions in the immigration law. Though there were some changes for the I-9 form in the law when President Clinton signed the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996" (IIRAIRA) on September 30, 1996, the process essentially remains as it was implemented when Congress passed the Immigration Reform and Control Act (IRCA) on November 6, 1986. As simple as the I-9 form appears, many employers continue to overlook them, do not complete them accurately, or do not store them properly. Perhaps employers do not fully understand the implications of violations concerning this employment verification and identification system.

Penalties and Fines
Breakdowns in compliance with the I-9 procedures may subject employers to costly and embarrassing CIS penalties and fines. Even prominent companies like Disneyland have been targeted and fined $395,000 for violations in employee I-9 records. Although the fine was later fought by Disney attorneys and reduced to $260,000, it is a fine, which could have been avoided. In order to comply with the employer verification I-9 record keeping requirements, an employer must institute a uniform procedure for completion of the I-9 forms.

Though the actual fines for I-9 violations remain unchanged, the new law does allow the CIS to issue a Warning Notice instead of an Intent to Fine for minor violations. The Warning Notice will be issued with the expectation that the violator will comply in the future. The CIS has the option to file this warning so that minor violations can be corrected by the employer without monetary penalties. These violations should be corrected within ten days of receiving a warning notice. It is important for a company to remember, though, that if the CIS comes to call once, they will most likely darken your doorstep again. Employers should make certain all corrections are made in an timely manner to document its "good faith" efforts in complying with the law. The law does not allow repeat or pattern offenders to rely on a "good faith" defense.

Good faith compliance was also included in the new law. In general, an employer is considered to have complied with IRCA requirements if there was a good faith attempt to comply. Of course, the government will not consider that employers have acted in good faith when they fail to correct their errors in ten days, or have a "pattern or practice" of violating I-9 requirements. It is wise for companies to implement a policy of periodic internal audits of their employment verification procedures. An internal audit allows the company to identify and correct mistakes prior to an audit by the CIS. Subsequently, an internal I-9 audit may persuade the CIS that the company did act in good faith to comply with I-9 regulations should the CIS find any minor violations during one of their audits.

Revised List of Acceptable Documents
Another change made to the I-9 form is a shortened list of acceptable documents an employee can present to verify identification and work authorization. Presently, the list of documents as printed on the back of the November 1, 1991 edition of Form I-9 is still effective. However, as a result of IIRAIRA, the Attorney General must determine what other documents can be used besides a United States Passport or a Driver's License and a social security card by September 30, 1997.

In the meantime, however, procedures for completing and storing I-9 forms remain the same. An employer should have its employees complete their I-9 form on the first day of work. The new employee gets three days to produce either one of the documents from List A (establishing identity and work authorization), or two other documents, including one document from List B (establishing identity only) and one document from List C (establishing work authorization only). Though, as mentioned before, there will be a shortened list of acceptable documents, the process of examining those documents remains the same.

It is the employer's responsibility to make sure that each employee has properly completed an I-9 form. Properly completed means that all appropriate boxes are correctly checked; the employer and the employee have signed and dated the form (many employees write their birth date instead of "today's date"); and the supporting documents are completely described, including state of issuance and expiration date (only those documents listed in the columns A, B, and C are acceptable by law). It is prudent to photocopy the document or documents presented by the worker. But employers should keep in mind that if they photocopy documents they must consistently do so for each employee. Additionally, each document must "reasonably appear on its face to be genuine." Employers must keep the I-9 form for three years from the hire date of the employee or one year after the employee's termination date, whichever is later.

A section in the new law was designed to ease part of the employers' burdens for I-9 compliance. Employers are now allowed to generate their own blank I-9 forms, as long as the employer's forms meet the CIS's physical standards. The forms may be generated either as single-sided or double-sided forms. This new rule was designed to save employers the cost of purchasing I-9 forms and to save them the burden of making double-sided copies.

Pilot Programs
IIRAIRA also states that the Attorney General must determine how three new pilot programs will be implemented. These pilot programs will test new methods for determining an employee's identification and work status. To be used in at least five of the seven states with the most unauthorized workers, the pilot programs will be voluntary for all but Federal employees and some previous IRCA violators. The pilot programs include a telephone verification system, a United States Citizen attestation program, and a "machine-readable-document" program. The details remain sketchy, but the Attorney General must finalize the procedures by September 30, 1997.

For more information regarding the I-9 form please click here