What to Do with a New Hire

How to make sure you’re following the law.

As employers, churches must complete an Employment Eligibility Verification form, better known as Form I-9, for each new employee. Form I-9 is not an IRS form and is not filed with any government agency. However, it is important that churches understand Form I-9 requirements. Employers that violate the rules may face fines depending on the nature of the violation. Employers will find Form I-9 and related information at uscis.gov, the website of the United States Citizenship and Immigration Services (USCIS).

The law requires employers to do the following five things:

1. Have all new employees complete the top half of Form I-9 on or before the date they start work.

2. Check original documents establishing every new employee’s identity and eligibility to work. These documents ordinarily will be an original state driver’s license plus either an original social security number card or an original or certified birth certificate. Employees must furnish the required documentation within three business days of starting work. An employee unable to produce the required documentation within three days may produce a receipt showing that he or she has applied for the required documents. The employee may then produce the documents within 21 days of starting work.

3. Complete the bottom half of Form I-9, by certifying that you inspected the original documents verifying the employee’s identity and eligibility to work (discussed in the preceding paragraph).

4. Retain every Form I-9 for at least three years. If you employ a person for more than three years, you must retain the form until one year after the person leaves your employment.

5. Present a Form I-9 for inspection to USCIS or Department of Labor officer upon request. Note that the Form I-9 is not filed with the government. Rather, it is retained by the employer for presentation to an appropriate government representative upon request.

Religious organizations are subject to the Form I-9 requirement. Churches that are opposed on the basis of religious convictions to complying with the Form I-9 requirement are not exempted from doing so. While United States citizens are automatically eligible for employment, they must provide the required documents and complete the Form I-9.

These reporting requirements do not apply to persons who are self-employed, but this term is defined very narrowly and would not include most ministers who report their federal income taxes as self-employed persons. The law also prohibits employers having four or more employees from discriminating against any individual (other than an alien not legally authorized to work) in hiring because of that individual’s national origin.

Violations of these requirements may result in monetary penalties. Penalties depend upon the nature of the violation. Employers who knowingly hire unauthorized employees may be fined between $250 and $2,000 per unauthorized employee for a first violation; $2,000 and $5,000 per unauthorized employee for a second violation; and $3,000 and $10,000 per unauthorized employee for a third violation. Employers who fail to properly complete, retain, or present for inspection a Form I-9 can be fined between $100 and $1,000 for each employee for whom a form was not completed, retained, or presented.

It is not certain whether the courts will apply the Immigration Reform and Control Act to ministers. Churches should assume that the law applies to both ministers and lay workers, unless an opinion to the contrary is received from legal counsel.

This article is excerpted from the downloadable resource Immigration and the Church.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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