I-9 Violations Cost Employers $1100 Each

One of your first responsibilities upon hiring a new employee is to complete an I-9 Form (Employment Eligibility Verification). The  I-9 form is intended to verify an individual's identity and eligibility to work in the United States. There are specific rules concerning when and how the I-9 form must be completed. Failure to properly complete and retain the I-9 as required by law may result in fines of up to $1,100 per violation.

The following are answers to some of the most common I-9 questions:

Q: What is the deadline for completing the I-9 for a new hire?

A. Section 1 of the I-9 form must be completed by the end of the employee's first day of work for pay. Section 2 must be completed within 3 business days following the first day of work for pay. For example, if an employee begins work on a Monday, Section 2 of the form must be completed by Thursday.

Q: Can I specify which documents I will accept for I-9 purposes?

A. No. The employee has the right to choose which documents to submit, provided they are on the I-9's list of acceptable documents (a complete list can be found on the last page of the I-9 form). Employees must present documents that establish identity and work authorization. This means either: one document from List A; or one document from List B and one document from List C.

Note: If you participate in E-Verify, you may only accept List B documents that bear a photograph.

Q: Am I required to photocopy an employee's I-9 documentation?

A. In general, there is no requirement for employers to make photocopies of the documentation provided by an employee to establish his or her identity and work authorization. However, if you do retain copies, you must do so consistently for all new hires. Photocopies should be kept with the employee's I-9 form.

Note: If you participate in E-Verify and the employee presents a document used as part of Photo Matching (currently the U.S. passport and passport card, Permanent Resident Card, and the Employment Authorization Document), you must retain a photocopy of the document.

Q: Can I accept a photocopy of a document? How about an expired document?

A. Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate. In addition, you cannot accept expired documents for I-9 purposes.

Q. What is my responsibility concerning the au­thenticity of documents presented?

A. You must examine the document(s) and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them.

Q: Are the document requirements different for minors?

A. If a person under the age of 18 cannot present an identi­ty document (i.e., a document from List B), he or she may establish identity if:

• The parent or legal guardian of the minor employee completes Section 1 and writes “Individual under age 18” in the signature space;
• The parent or legal guardian completes the Preparer and/or Translator Certification block; and
• The employer enters “Individual under age 18” under List B and records the List C document the minor presents.

Note: Even though the minor is not required to present an identity document if he or she does not have one, he or she must still present documentation that establishes work authorization.

Q: How long am I required to retain the I-9?

A. I-9 forms must be retained for at least three years or for one year following the employee's separation from the company, whichever is later. For example, if an employee retires from the company after 20 years, you must retain his or her I-9 form for a total of 21 years from his or her date of hire.

Q: I'm rehiring a former employee. Do I have to complete the I-9 again?

A. If more than three years has passed since the individual initially completed the I-9, he or she must complete a new I-9. Otherwise, you may re-verify their employment eligibility by completing Section 3 of the form.

Q: What do I do when an employee's employment authorization expires?

A. When an employee's employment authorization document expires, you must re-verify his or her employment authorization prior to the date of expiration using Section 3 of the I-9 form. The employee must present an acceptable document that shows either an extension of his or her initial employment authorization or a new employment authorization. If Section 3 has already been used for a previous re-verification or update, use a new I-9 form. If a new I-9 is used, write the employee's name in Section 1, complete Section 3, and retain the new I-9 with the original.

Note: If the version of Form I-9 that was used for the employee's original verification is no longer valid (i.e., a revised/updated version of the I-9 form has since been released by the USCIS), you must complete Section 3 of the cur­rent I-9 form upon re-verification and attach it to the original I-9.

Not all expired documents require re-verification. The following expired documents need not be re-verified: a U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired during employment.

Q: What do I need to do if an employee's name has changed?

A. While you're not required to update the I-9 form when an employee changes his or her name, the United States Citizenship and Immigration Services (USCIS) recommends that you note any name changes in Section 3.

You may, but are not required to, take steps—such as asking the employee for the basis of the name change—to be reasonably assured of the employee's identity and the authenticity of the name change. Additionally, you may ac­cept evidence of the name change if provided by the employee and keep it with the employee's I-9.

Q: A new hire presents documentation verifying that the he is authorized to work in the United States, but the employee's employment authorization is set to expire in 30 days. Can I refuse to hire the employee because of this?

A. No. An employer is prohibited from refusing to hire an individual solely because his or her employment authorization has an expiration date. If an employee's employment authorization expires during his or her employment with you, you must re-verify employment eligibility by completing Section 3 of the I-9 form, or if Section 3 has already been used for a previous re-verification or update, use a new I-9. Re-verification must occur no later than the date in which employment authorization expires.

Q: A company and its employees are acquired by another company. Is the acquiring employer required to complete I-9 forms for these employees?

A. Employers who have acquired another company or have merged with another company have two options:

• Option A: Treat all acquired employees as new hires and complete a new I-9 form for each individual. Enter the effective date of the acquisition or merger as the date the employee began employment in Section 2 of the new Form I-9; or
• Option B: Treat acquired individuals as employees who are continuing in their uninterrupted employment status and retain the previous owner's I-9 forms for each acquired employee. Note that the acquiring employer would be liable for any errors or omissions on previously completed I-9s.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls, SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com.