Key Point. Employers are required by law to confirm the identity, and eligibility to work, of all new hires. This is done by having each new hire complete U.S. Citizenship and Immigration Services (USCIS) Form I-9. Churches are subject to this requirement.
Key Point. One federal court ruled that churches can be forced to comply with the immigration reporting requirements even if compliance would violate their religious convictions.2 American Friends Service Committee v. Thornburgh, 718 F. Supp. 820 (C.D. Cal. 1989).
Every employer in the United States is required to confirm the identity of all new employees and verify that they are either American citizens or aliens legally authorized to work in this country. These rules, enacted by Congress in the Immigration Reform and Control Act of 1986 as a means of stemming the tide of illegal immigration, represent one of the most comprehensive reporting schemes ever adopted by the federal government.3 8 U.S.C. §1324a.
Religious organizations are subject to these rules.
The Immigration Reform and Control Act made 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. To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens. Every U.S. employer must have a Form I-9 in its files for each new employee hired after November 7, 1986 who has been continuously employed by the same employer.
Form I-9 need not be completed for:
- persons providing domestic services in a private household that are sporadic, irregular, or intermittent;
- persons employed by a domestic service company (for example a maid service) or agency employing temporary domestic workers;
- persons providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a job according to their own means and methods, supply their own tools, offer their services to the public, work for several clients at the same time, and determine the hours during which the work will be done);
- persons providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. In such cases, the contractor is the employer for I-9 purposes (for example, a temporary employment agency).
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 their own files for three years after the date of hire or one year after the date the employees employment is terminated, whichever is later. This means that I-9 forms need to be retained for all current employees, as well as terminated employees whose records remain within the retention period.
Key Point. U.S. immigration law does not prohibit storage of a private employers I-9 records in employee personnel files.
The law protects certain individuals from unfair immigration related employment practices, including refusal to employ based on a future expiration date of a current employment authorization document. The U.S. government entity charged with oversight of the laws protecting against unfair immigration related employment practices is the Office of Special Counsel for Immigration Related Unfair Employment Practices, which is part of the Civil Rights Division of the U.S. Department of Justice.
A new employee must complete Section 1 of a Form I-9 no later than close of business on his or her first day of work, or before their first day of hire if the employer has offered the individual a job and if he or she has accepted the offer.
Section 1 asks for several items of information from the employee, including name and address, Social Security number, date of birth, email address, and telephone number. It also requires the employee to attest that he or she is one of the following:
- a citizen of the United States
- a noncitizen of the United States
- a lawful permanent resident (include alien registration number or USCIS number)
- an alien authorized to work (include an alien registration number or USCIS number, Form I-94 admission number, or foreign passport number and country of issuance.
The employees signature makes him or her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full.
The employer is responsible for ensuring completion of the entire form. No later than close of business on the employees 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. The employer should supply to the employee the official list of acceptable documents for establishing identity and work eligibility.
Note that section 2 of Form I-9 has three “lists” labeled Lists A, B and C. An employer may accept any List A document, establishing both identity and work eligibility, or a combination of a List B document (establishing identity) and List C document (establishing work eligibility), that the employee chooses from the list to present (the documentation presented is not required to substantiate information provided in Section 1). The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them.
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 should refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ someone who cannot present documentation that meets the requirements.
Employers are not required to be document experts. If an employee presents a document that appears legitimate but is in fact not genuine, or is genuine but does not belong to the person who presented it, the employer will not be held responsible for accepting these documents. As long as the document reasonably appears to be genuine or to relate to the person presenting it, this is the standard the government uses in assessing an employer’s liability for hiring an ineligible employee. Employers can request assistance from the nearest immigration field office if they are uncertain of a document’s genuineness.
It occasionally happens that an employer learns that an employee whose documentation appeared to be in order for Form I9 purposes is not actually authorized to work. In such cases, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued (alien employees who question the employer’s determination may be referred to an Immigration field office for assistance).
False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.
There are two separate and unrelated photocopy issues relating to the Form I-9. First, an employer can accept only the original documents (not necessarily the first document of its kind ever issued to the employee, but an actual document issued by the issuing authority), with the single exception of a certified photocopy of a birth certificate. Second, it is permissible (but not required) for an employer to attach photocopies of this documentation to each employee’s Form I-9. Where this practice is undertaken by an employer, it must be consistently applied to every employee, without regard to citizenship or national origin.
Retention of I-9 forms
All of an employer’s current employees (unless exempt) must have Forms I-9 on file. A retention date can only be determined at the time an employee is terminated. It is determined by calculating and comparing two dates. To calculate date A, the employer should add three years to the hire date. To calculate date B, the employer should add one year to the termination date. Whichever of the two dates is later in time is the date until which that employee’s Form I-9 must remain in the employer’s employment eligibility verification files.
Official inspection of I-9 records
Upon request, all Forms I-9 subject to the retention requirement must be made available in their original form or on microfilm or microfiche to an authorized official of the Department of Homeland Security (DHS) or other federal agency.
New Form I-9
U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9 in November 2016. By January 22, 2017, employers must use only the new version, dated November 14, 2016. Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.
Other changes include:
- The addition of prompts to ensure information is entered correctly.
- The ability to enter multiple preparers and translators.
- A dedicated area for including additional information rather than having to add it in the margins.
- A supplemental page for the preparer/translator.
- The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.
- The revised Form I-9 is also easier to complete on a computer. Enhancements include drop down lists and calendars for filling in dates, on screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.
E-Verify is an Internet based system that allows employers to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use, and is the best way employers can ensure a legal workforce. See the E-Verify website for details, www.uscis.gov/e-verify.