07.17.15
Form I-9, the document used to verify employment eligibility of employees in the United States, is required of all employees in the United States, regardless of immigration status. Clark Lau LLC can help you work through some of the I-9 issues that are becoming more relevant. The following is general information which we hope can help you. For your specific situation, please always contact us for assistance.Established in 1986 with the Immigration Reform and Control Act, the I-9 is required to be completed for any employee hired after November 6, 1986. The completion of the Form I-9 is critical for all employers in order to avoid government-imposed penalties. Just this year alone, the United States Justice Department has levied a fine of almost $12,000 to an employer that did not complete its I-9's in good faith, while another was ordered to pay $320,000 as punishment for its discriminatory practices. In order to avoid similar penalties, it is critical for employers to remember the following five practice pointers regarding I-9's.#1: Form I-9 requires the presentation of documents by the employee, but the employer cannot specify which specific documents are to be presented. Specifying a required document constitutes an act of discrimination.
  • In conjunction with Form I-9, employees must present documents to their employer designated by USCIS (US Citizenship and Immigration Services).
  • USCIS provides three lists of acceptable documents: List A, List B, and List C
  • All employees must provide either one document from List A or one document from List B in combination with one document from List C
#2: When conducting a self-audit of I-9's, employers must not discard I-9's that are still needed for compliance with government regulations.
  • When filling out an I-9 for a new employee, an employer must maintain the I-9 until the later of the following:
    • Three years after the employee's first day of employment OR
    • One year after the employee has no longer been employed by the employer.
#3: ICE (US Immigration and Customs Enforcement) only audits very large employers or employers in industries where they suspect there are unauthorized workers; this is not true.
  • All employers must be aware that ICE can audit their I-9 forms at any time and that these inspections are not unique to specific industries or companies of certain sizes.
  • It is very important that all employers recognize that ICE does not discriminate and is just as likely to audit any employer.
#4: USCIS introduced a Spanish version of the I-9 so any employee who prefers to complete a Spanish version of the form is able to do so; this is not true.
  • Even though USCIS did release a Spanish version of the form, it is only permitted that the form be completed for official use in Puerto Rico.
  • Otherwise, while this form may be used as a translation guide, all employees outside of Puerto Rico must complete the English version of the I-9.
#5: E-Verify is an easy option to be used in order to obtain an OPT STEM extension for an employee; this is also false.
  • Although it is true that signing up for E-Verify is a prerequisite for the OPT STEM Extension, E-Verify is not a "set it and forget it" solution. It requires vigilance and organization on the part of the employer to remain in compliance with relevant regulations. It must also be used for all new hires, regardless of immigration status, after an employer signs up.
  • It is also observed that ICE uses E-Verify data in its audit and enforcement actions.
* The above information is provided for educational purposes only. Please consult an immigration attorney to discuss the specifics of your situation. Special thanks to Clark Lau team member Lucas Sutherland for his contribution to this post.