If you own a business, or if you have been hired in the U.S. after 1986, chances are you have heard of the phrase "I-9 verification." Even though I-9 verification has been around since 1986, many U.S. employers are still unclear about their I-9 obligations and have paid hundreds of thousands of dollars in penalties.

Every business owner in the U.S. is subject to the Immigration Reform and Control Act (IRCA). The IRCA makes all U.S. employers responsible to verify the "employment eligibility" and "identity" of all employees hired to work in the United States after November 6, 1986. Employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens.

FOR EVERY EMPLOYEE
Every U.S. employer must have a Form I-9 in its files for each employee hired after November 6, 1986. There are exemptions such as certain irregular and sporadic household workers, temporary employees (provided by a temp agency under contract), and independent contractors.

RETENTION PERIOD
Unlike tax forms, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in its own files for 3 years after the date of hire or 1 year after the date the employee's employment is terminated, whichever is later. This means that Form I-9 need to be retained for all current employees, as well as terminated employees whose records remain within the retention period.

WHERE SHOULD I-9 RECORDS BE STORED?
Form I-9 records may be stored at the worksite to which they relate or at the company headquarters, or other location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for inspection by Immigration and Naturalization Service or the Department of Labor. U.S. immigration law does not require a private employer to maintain I-9 records in employee personnel files. In fact, as a practical matter, they are stored separately so that in case of an official request for production, it is easier to meet the 3-day deadline (e.g., a three ring binder).

DISCRIMINATION
The IRCA law protects individuals from unfair immigration-related employment practices of a U.S. employer, including refusal to employ based on a future expiration date of a current employment authorization document.

EMPLOYEE'S RESPONSIBILITY
A new employee must complete Section 1 of a Form I-9 no later than close of business on his/her first day of work. The employee's signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full. No documentation from the employee is required to substantiate Section 1 information provided by the employee.

EMPLOYER'S RESPONSIBILITY
The employer is responsible for ensuring completion of the entire form. No later than close of business on the employee's third day of employment services, the employer must complete section 2 of the Form I-9. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued.

ACCEPTABLE DOCUMENTS
The employer should supply to the employee the official list of acceptable documents for establishing identity and work eligibility from the back side of the form I-9. The employer may accept any List A document, establishing both identity and work eligibility, or combination of a List B document (establishing identity) and List C document (establishing work eligibility), that the employee chooses from the list to present. If an employee cannot submit the documents but submits a receipt indicating that such a document will be issued later, then this receipt is sufficient for 90 days within which time the employee must produce the actual documents.

GENUINENESS OF DOCUMENTS
Employers are not required to be document experts. In reviewing the genuineness of the documents presented by employees, employers are held to a reasonableness standard. The employer must examine the document(s) and accept them if they reasonably appear to be genuine. Requesting more or different documentation than the minimum necessary to meet this requirement may constitute an unfair immigration-related employment practice. If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.

PHOTOCOPIES OF DOCUMENTS
There are two separate and unrelated photocopy issues in the I-9 verification process. First is whether an employer may accept photocopies of identity or employment eligibility documents to fulfill I-9 requirements. The answer is "no" with the single exception of a certified photocopy of a birth certificate. Second is whether the employer must attach photocopies of documentation to Form I-9. The answer is that this is permissible, but not required. Where this practice is undertaken by an employer, it must be consistently applied to every employee, without regard to citizenship or national origin.

NEW OWNERS OF EXISTING BUSINESSES
In a case where a new owner of a business is a successor in interest, having acquired an existing business, the new employer may keep the acquired employer's I-9 records rather than complete new Forms I-9 on employees who were also employees of the acquired employer. However, since the new employer would be responsible for any errors, omissions or deficiencies in the acquired records, it may choose to protect itself by having a new Form I-9 completed for each acquired non-exempt employee and attached to that employee's original Form I-9.

EMPLOYEES AT REMOTE SITES
It is not unusual for a U.S. employer to hire a new employee who doesn't physically come to that employer's offices to complete paperwork. In such cases, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountant, attorneys, personnel officers, etc. An employer should choose an agent cautiously, since it will be held responsible for the actions of that agent. Note: Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.

For more information, you may contact the I-9 hotline at 1-800-357-2099.

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