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In 1986, the immigration and Control Act made employers liable for the knowing employment of aliens not authorized to work in the U.S. by the Immigration and Naturalization Service (INS). Employers are required to maintain I-9 Forms showing that all employees are authorized to work in the U.S. including U.S. citizens. Many common errors are committed by employers completing the I-9 Form. Violations of these employer sanctions laws expose all employers to substantial civil penalties. This complex area of the law demands careful attention by all employers.  Although the law underwent minor modification in 1996, employers should be as careful as ever in assuring the Form I-9 is meticulously filled in.

What are Employer Sanctions?

The basics of the law are:

  • Employers may only hire or continue to employ aliens who are authorized to work in the United States.
  • Employers must verify the identity and employment of every employee hired after November 6, 1986 by use of INS I-9 Form. This paperwork must be retained for three years of employment or one year after termination, whichever is later.
  • I-9s must be made available for inspection by the INS upon three days written demand notice by INS. Employers have the right to a hearing before an Administrative Law judge in the event of violations.
  • Fines for violations range from $100 to $10,000. Criminal penalties can apply for a pattern or practice of hiring unauthorized aliens.
  • Employers may not discriminate against employees based upon citizenship, lawful permanent resident status, and national origin.

Employer Verification Requirement: The I-9 Form

  • All employees hired after November 6, 1986 are required to have an I09 Employment Eligibility Verification Form on file with the employer. The employee must present document(s) establishing identity and authorization to work in the U.S. The employer must examine the record information, concerning the documents, and accurately record identification numbers and expiration dates.
  • The employee’s Section 1 of the I-9 Form must be completed at the time employment begins or before. Employer’s Section 2 must be completed before employment begins or within three business days of the date the employee starts working. The employer and employee must sign the form.
  • Standard procedures at the time of hire are recommended. Systems to re-check documents with expiration dates should be set-up.
  • An employer may not require an employee to produce a particular document like a permanent residence document (green card). There is a broad choice of acceptable documents for both identity and work authorization. To require a particular document is a prohibited practice.

Exceptions to the Verification Requirements

  • Employees hired on or before November 6, 1986 are not required to fill out an I-9 Form.
  • Certain changes in employment do not trigger the I-9 requirement.
  • Temporary leave with or without pay.
  • Temporary lay-offs.
  • Strike or labor dispute.
  • Transfers from one place of employment to another.
  • Continued employment with a related, reorganized successor employer.
  • Independent contractors who carry on independent business or who are paid by piecework or assignment completed off site.
  • Casual employees who provide domestic service in a private home on a sporadic, irregular or incidental basis (however, once a week employment requires an I-9).
  • Self-employed people as they are not considered employees of an employer.

Common Errors Committed in Preparing I-9 Forms

  • Make sure that every item in Section 1, Employee Information and Verification, is completed by the employee. Make sure that the employee has signed the form in the box provided for the signature and dated it. The employee must check one of the three boxes to show status in the United States.
  • The most common acceptable documentation used to complete List B is a driver’s license. Be sure to specify the state in the United States from which the driver’s license was issued. It is acceptable to use an expired driver’s license.
  • Do not omit the date upon which a document expires.
  • The employer’s representative who viewed the original documents must sign Section 2, Employer Review and Verification, and print or type his or her name. Do not sign unless you have personally viewed all the documents.
  • Do not omit the name and address of the business in the employer’s certification block. A fine will be levied each time this information is omitted.

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