Employers Must Take Care to Avoid Discrimination When Completing Form I-9

The Immigration Reform and Control Act of 1986 (IRCA) requires all US employers fill out Form I-9 upon hiring an employee to verify his or her employment eligibility. Although it may seem straightforward to request that an employee fill out a form, it actually requires a light touch. Employers must request enough information to comply with IRCA, but not too much — or the wrong kind — of information, which could imply discrimination.

Employers must fill out Form I-9 for employees — anyone who performs labor or services in return for wages or other compensation — hired after Nov. 6, 1986. Employers need not fill out the form for casual domestic employees in a private home, independent contractors or their employees. Employers generally must complete the form within three business days of the employee’s first day of work.

All sections of the form must be completed; blanks or errors can subject employers to fines. In Section One, the employee must indicate the status that authorizing the employee to work in the US — US citizen, lawful permanent resident, etc. — and indicate if, and when, such authorization expires. The employee must present original documentation proving his or her identity and authorization to work in the US. The employee must be allowed to choose from the List of Acceptable Documents on the I-9 form; the employer may not require that a specific document be provided.

Employers must review the documents submitted to confirm they are consistent with the information provided in Section One. Employers must take care to apply the employment eligibility verification process to all employees equally to avoid violating the anti-discrimination provisions of IRCA. Thus, requesting additional information based on an employee’s citizenship status or national origin is prohibited. For example, an employer may not require additional documentation from non-US citizens that it does not also require US citizens to provide.

Section Two requires the employer to attest that the required documents were inspected and appeared genuine, and to record the type of document presented, its source and expiration. Although they're not required to do so, employers may keep copies of the documents with the completed I-9 form. While this may provide evidence to support an employer’s reasonable belief of the employee’s authorization to work in the US, they may also be used against an employer to show proper documents were not presented. Whether or not an employer opts to retain copies, it is important to do so with all employees, citizens and non-citizens alike.

Employers must also take care to keep track of and re-verify any employment authorizations for non-citizens with an expiration date. Failure to do so is considered constructive knowledge that the employer continues to employ an unauthorized worker and can result in IRCA violations. Finally, employers must keep a completed Form I-9 on file for each current employee and copies of those completed by past employees for either three years from the date of hire or one year after the date of termination, whichever is later.

Failure to prepare an I-9 at all is among the most serious of paperwork violations. At the same time, employers need to be careful not to go overboard when ensuring that non-citizens are authorized for employment, which could expose them to discrimination claims. WeComply’s online I-9 Compliance training course covers what supervisors and managers need to do to properly complete and retain Form I-9 in compliance with the law.

Topics:  Discrimination, Employer Liability Issues, I-9, Immigration Reform, IRCA, USCIS, Visas

Published In: Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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