Law Office of Timur Edib

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Law Office of Timur Edib

Many people don’t realize that all employers must document that their employees are authorized to work. That means that either you are a US citizen, a green card holder, or you have some type of documentation that authorizes you to work. What the government has done is create a form called the I-9. Every worker, whether a US citizen or not, must complete this two-page document within 72 hours of hire. On the first page, the person fills out a box that says they are authorized to work in one of those categories. Then, they sign it under the penalty of perjury.

The employer then verifies the documents and also signs the I-9 form, under penalty of perjury, that they have verified. The list of documents is on the back page and the employer may not ask you to show a specific one. That is a violation of equal opportunity. All the employer can do is to give you the checklist. It’s up to the potential employee to ascertain which document they would like to show. A US citizen can simply show their passport, any sort of photo ID, or a social security card.

The I-9 is required by every employer and the penalties are high. For every violation, it could be up to a $10,000 fine. The failure to complete an I-9 properly puts them at $100,000 per employee. If you have 100 employees, that’s a lot of penalties. The government has not been serious in enforcing it in the past but under the current administration, it is getting tougher. A parallel to the I-9 is the E-verify system. The government created a program where you can go online to the immigration portal and every United States green card holder and everyone who has work authorization has given their pictures. When you go to E-verify and you enter the person’s name, their picture will pop up for verification of identity.

The I-9 is significant and the E-verify is being implemented slowly. Every employer must do it for every employee. They must keep this file for three years. Many employers circumvent the employer-employee relationship by creating what are called independent contractors. Independent contractors don’t complete an I-9; they complete a W-9 where they verify their contract ID number. This is their number and then they take liability for that taxation. Either you hire an employee with an I-9 or you hire an independent contractor with a W-9. In either case, those forms must be completed. The Department of Labor has made a major crackdown under what’s called the PAIV Program, and they are now verifying from employers that all of their listed independent contractors are truly independent contractors.

History Of The I-9 Form For Employment Eligibility Verification

The Immigration Reform and Control Act of 1986 required employers to verify that all newly hired employees presented valid documentation verifying the employee’s identity and their legal authorization to accept employment in the United States. The I-9 form was and is provided by the federal government for that purpose.

Every employee who has been hired after November 6, 1986 has to complete an I-9 form at the time of hire. Employees must complete Section One of the form upon employment. The employer must complete Section Two within three days of the employee’s starting date. The employer is responsible for ensuring that the forms are completed properly and on time.

An I-9 form is not required for unpaid volunteers or for contractors. However, a company can find itself liable if it employs unauthorized workers. Several versions of Form I-9, Employment Eligibility Verification, have been issued since the form was first introduced. Not all versions are currently valid. To determine whether you are using the correct version of Form I-9, look at the revision date, which is printed on the bottom left corner of the form.

If an employee cannot read or write in English, a translator can complete the form and sign it on behalf of the employee but the form does also require the employee’s own signature. In October, 2004, new legislation made it possible to complete the I-9 electronically. Employers must re-verify certain documents before their expiration date. This does not apply to accepted non-expired U.S. Passports or Lawful Permanent Resident Cards when they reach their expiration date, or to state driver’s licenses and state IDs. The USCIS website lists the limited requirements for reverification.

For U.S. citizens, I-9 forms remain valid unless there is a break of more than a year in employment. International employees on F-1, H-1B, or J-1 visas must have their I-9 re-verified each time their visa has expired. Employers must retain a Form I-9 for all current employees and must also retain a Form I-9 for three years after the date of hire or one year after employment ends, whichever is later. Employers must show their employees’ I-9 Employment Eligibility Verification form any time an immigration or labor authority requests it.

The Immigration Reform and Control Act, which introduced the requirement leading to the endorsement of the I-9 Employment Eligibility Verification form, also included anti-discrimination rules. Under the Act, most U.S. citizens, lawful permanent residents, temporary residents, and refugees who are legally allowed to work in the United States cannot be discriminated against because of national origin or citizenship status. This provision applies to employers of at least three employees and covers both hiring and termination decisions. In addition, an employer is required to accept any valid document or combination of documents specified in the I-9 form, as long as the documents appear to be genuine.

An employer cannot refuse to hire a candidate because his I-9 reveals that he is not a citizen, such as in the case of a lawful permanent resident or a refugee. For this reason, some immigration lawyers advise companies to avoid requiring an I-9 until the candidate is hired, so as not to risk a lawsuit. For example, a company could not insist that an employee provide a passport instead of a driver’s license and a social security card. Another anti-discrimination rule requires that employers must enforce I-9 compliance in a uniform manner. An employer cannot require some employees to complete an I-9 Employment Eligibility Verification form before being hired but allow others to complete the form after already starting employment.

Employers must not assume that an employee is unauthorized to work just because the individual could not bring proof of employment authorization or has brought unaccepted documents until the start date of the employment. Instead, employers should always encourage the employee to bring the acceptable documents, which are listed on the form under the lists A, B, and C. Employers can terminate employment only if the employee cannot attest to their work authorization by bringing the proof after the employment start date.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is a department within the Department of Justice’s Civil Rights Division. It enforces the anti-discrimination provision of the Immigration and Nationality Act. The OSC helps employees by calling employers and explaining the proper verification practice. When necessary, it helps by by providing victims of discrimination with forms. Upon receipt of a report of discrimination, OSC investigators normally take no longer than seven months to complete an investigation. Victims may obtain various types of relief, including job relief and back pay. The OSC also has an extensive outreach program. It provides staff to speak at outreach events and provides free informational materials for distribution to employees, employers, and the public.

For more information on I-9 Forms For Employers & Employees, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (301) 750-9555 today.

Timur Edib

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(301) 750-9555