04/ 02/ 2008
by Beth Milito, NFIB Small Business Legal Center
What you need to know about verifying an employee's work authorization
Did you know that every individual who is hired (including family members) must complete a Form I-9, which is the federal form issued by the U.S. Department of Homeland Security, Citizenship and Immigration Services that verifies an employee's authorization to work in the United States? In November, the government issued a new Form I-9 that employers should have begun using by Dec. 26, 2007.
As federal officials ramp up immigration enforcement, it is now more important than ever to ensure that your business complies with federal immigration laws, including Form I-9 procedures. Test your knowledge of the Form I-9 with these questions.
Do employers have to fill out the new Form I-9 for existing employees?
A. Yes
B. No
C. Not unless you suspect the employee may be an illegal immigrant
The Form I-9 and photocopies of the employee's identifying documents should be filed with:
A. U.S. Citizenship and Immigration Service
B. Social Security Administration
C. None of the above
An employer who suspects an employee is not authorized to work in the United States should:
A. Demand to see a green card
B. Ask to see acceptable documentation
C. Terminate the employee
Answers
1. B. Melissa A. Bailey, a labor and employment attorney at Ogletree, Deakins, Nash, Smoak & Stewart, P.C., says that the new Form I-9 is only required for new employees and existing employees who have work authorizations that will expire in the future. Also, if an employer implements requirements, such as filling out a new Form I-9, only for employees it suspects may not be authorized to work in the United States, a claim of discrimination based upon race or national origin may result.
2. C. Form I-9 is not filed with any federal agency. Instead, employers must retain the forms in either paper or electronic format. You must be able to present the Form I-9s within three days of an audit request from federal authorities. You are not required to keep photocopies of the documents presented by the employee. In fact, some employment attorneys recommend against photocopying documents since copies of counterfeit documents, which might appear genuine to the employer but easily identified as counterfeit by federal immigration officials, could be used against a business. If you do choose to photocopy the documents, make sure you copy documents for all employees.
3. B. “You should question the employee and provide the individual with an opportunity to furnish acceptable documents,” Bailey says. “If the employee cannot provide acceptable documents, his or her employment should be terminated. You cannot require a green card as proof of an individual's eligibility to work in the United States. A green card is only one of a number of acceptable documents for employment verification.” Employers who specify which documents they will accept from an employee could face immigration discrimination charges from employees and from the U.S. Department of Justice. The back of the Form I-9 contains a complete list of acceptable documents. An employee may present any document from List A, or a combination of one document from List B and one from List C. Remember that you can only accept unexpired documents.
Beth Milito is senior executive counsel with the NFIB Small Business Legal Center, www.NFIBlegal.com. This article is intended to provide general information for reference only and should not be considered legal advice.
NFIB.com
Download Form I-9 and the revised Handbook for Employers at www.NFIBlegal.com.
You can request the form and get more information on immigration laws by calling the National Customer Service Center toll-free at 800-375-5283. NFIB members with additional questions can contact the NFIB Employment Law Hotline. For information on the hotline, call 800-NFIB-NOW.
This article is from the April/May 2008 issue of MyBusiness.
