Immigration Reform and the Current Form I-9 Rules – October 02, 2008

Immigration Reform and the Current Form I-9 Rules

Recent developments in the push for immigration law reform could affect employers in significant ways, as proposed legislation would call for penalties for employers who hire undocumented workers. Congress is considering approving a plan that would require employers to check every worker’s Social Security number or immigration work permit against a new federal computer database. With the prospect of significant immigration law reform in the near future, a review of the procedures for verifying a worker’s legal status is certainly appropriate. Here are some of the important points to remember:

Know Your Form I-9 Rules

The Immigration Reform and Control Act (IRCA) provides that, for each employee hired after November 6, 1986, both the employer and employee must complete a U.S. Office of Citizen and Immigration Services Form I-9, Employment Eligibility Verification. On the Form I-9, the employer attests that: (1) it has examined the documents presented by the employee, (2) the documents appear to be genuine, and (3) the employee began work as of a certain date, and, to the best of the employer’s knowledge, the employee is eligible to work in the United States.

Employers must ensure that Section 1 of Form I-9, Employee Information and Verification, is completed by the employee upon date of hire (i.e., first day of paid work). The signature and attestation under penalty of perjury portions of Section 1 are very important, and employers should take special care to ensure that employees complete these in full. Although employers are held responsible for deficiencies of information in Section 1 (i.e., where required information is not provided by the employee), they may not require employees to produce documents to verify Section 1 information.

Employers must retain the I-9 for the longer of (1) three years after the date the individual was hired, or (2) one year after the individual was terminated. Forms I-9 may be kept on microfilm or microfiche so long as they are readable and the employer makes available a reader-printer for inspectors [8 CFR 274a.2]. See RIA Payroll Guide ¶ 20,420 for common questions and answers about Form I-9.

Request the Right Document

An employer or referral agency must verify that an individual it has hired is authorized to work in the United States by examining documents that show both (1) the identity of the individual, and (2) the individual’s right to work in the United States. On the back of Form I-9 are three lists of documents. List A includes documents which establish both identity and work authorization, List B includes documents which establish identity only, and List C includes documents which establish employment authorization only. Employers may request documents from these lists only [8 USCS 1324b(a)(6)]. Once an employee produces the appropriate documents, employers cannot reject them and ask for different documents unless they know that the documents are fraudulent or do not relate to the applicant presenting them. See RIA Payroll Guide ¶ 20,385 for a complete discussion of verification documents.

Understand USCIS Receipts as Alternative Documents

When an applicant applies for a document, the U.S. Office of Citizen and Immigration Services initially issues a receipt for the application. These receipts generally are not acceptable as proof of identity or work eligibility. However, employers may accept the following receipts in lieu of Form I-9 documents:

(1) A receipt for the application of a replacement document if the required document was lost, stolen, or damaged. The replacement document must be presented within 90 days of the hire or, in the case or reverification, the date employment authorization expires.

(2) The arrival portion of the Form I-94 containing an unexpired temporary I-551 ADIT stamp (indicating temporary evidence of permanent resident status), with the worker’s picture attached, may be accepted as a receipt. Form I-94 is a form given to people whose employment is authorized pending a decision on an asylum or refugee claim, or whose stay in the United States is authorized by the USCIS under its power to grant hardship relief. This receipt satisfies the I-9 documentation presentation requirement until the expiration date on the Form I-94. If no expiration date is indicated, an employer may accept the receipt for one year from the issue date of the Form I-94.

(3) Form I-94 with a refugee admission stamp is acceptable as a receipt for 90 days, within which time the employee must present an unrestricted Social Security card, together with a List B identity document or an Employment Authorization Document (Form I-688B or I-766).

Know What You are Not Responsible For

Employers are not expected to ascertain the legitimacy of documents presented during the verification process. They need only verify that each document examined appeared on its face to be genuine and that they relied on it in good faith. Employer determinations of the authenticity of documentation will be judged on a “reasonable man” basis (i.e., could the average person reasonably believe that the document is authentic). If an applicant for employment or for employment referral cannot or will not produce identity or employment authorization cards, it is unlawful to hire or refer the individual. However, nothing in the law requires the employer or referral agency to alert immigration authorities or other agencies as to the individual’s possible status as an illegal or unauthorized alien.

This information is a presentation of the general rules and should not be used or relied upon for any particular investment or transaction. We recommend you consult your tax attorney or advisor for your specific situation. If you would like more information on these matters we would be glad to visit with you.

As required by United States Treasury Regulations, you should be aware that this communication is not intended or written by the sender to be used, and it cannot be used, by any recipient for the purpose of avoiding penalties that may be imposed on the recipient under United States federal tax laws.