My last two posts were meant to call attention to the increased wave of work site enforcement to prepare you for the inevitable. So now I’m stepping back a pace to talk about what the I-9 is and how it’s used. So settle in! There’s a bit to go over.
But before we get into it, try out this 5-question quiz to see what you might already know about I-9s (brought to you by my friends at SHRM and LawLogix):
Quiz: How Well Do You Understand I-9 Compliance?
Did you pass with flying colors? Did you fail miserably?
Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.
Created pursuant to 1986’s Immigration Reform and Control Act (IRCA), Form I-9, issued by the United States Citizenship and Immigration Services, is used by all employers (with one or more employees, across the country, including Puerto Rico and other territories) to verify the identity and employment authorization of individuals hired for employment in the United States.
Every employee hired on or after November 6, 1986, must have an I-9 on file with their employer. EVERY. SINGLE. PERSON. Even U.S. Citizens. Even kids under 18 (not incidental workers or babysitters). Even the C.E.O. Even your mom/dad/cousin/auntie.
There are four classifications on the I-9 form: Citizen of the United States, Noncitizen National, Lawful Permanent Resident, and Alien Authorized to Work. Here’s what each of those really means:
U.S. Citizen: Citizens of the United States (relatively self-explanatory, n’est-ce pas?)
Noncitizen National: a very narrow group. Includes individuals born in American Samoa, certain Pacific Islanders, and certain children of noncitizen nationals born abroad.
Lawful Permanent Resident: colloquially known as a “green card” holder. Fun (?) fact: permanent resident cards used to be green, hence why they are referred to as green cards. They’ve gone through a few iterations over the years. They are now holographic and partially green. If you come across an older Resident Alien card (they’re peach), they’re valid indefinitely (i.e. they have no expiration date), and are acceptable List A documents.
Alien authorized to work: this last category is broad. And generally where many I-9 questions arise and mistakes happen, so here are some examples: a student in post-graduation optional practical training (OPT); a person on whose behalf your company has filed a non-immigrant petition (i.e. H-1B, L-1, TN, E, O-1, etc.); refugees and asylees; certain spouses of other immigrants/non-immigrants.
If you’re not a seasoned HR professional or immigration expert (or even if you are – no judgement!), let’s go over some of the ground rules for the I-9 process. There is quite literally a 100+ page manual along with 15 pages of instructions for this 2 page form, so this really only scratches the surface.
The employee must complete Section 1 of Form I-9 on or before their first day of work. But be careful about asking for the completed form before their first day of work; they must have been offered and accepted an offer of employment before you ask them to complete the form (AND you may have to pay them for the time it takes to complete it, so just tread carefully with pre-first-day form completion requests).
Section 2 must be completed within 3 business days of the date of hire. Contrary to popular math, USCIS has clarified that this means that if the employee starts on Monday, Section 2 must be completed by Thursday. If you’re regularly open on weekends, then Saturdays and Sundays count in the calculation.
Employees may not be requested or required to show specific documents during their I-9 process (ex. you can’t require that Lawful Permanent Residents show their Permanent Resident Card). When you give an employee the I-9 to complete (or provide it online through whichever system you’re using), they must also be provided with the instructions AND the list of acceptable documents. They can show one List A document or one each from List B and C. Do not suggest certain documents. (“But WHY can’t I request certain documents when I KNOW someone is a permanent resident? They checked that box on the form even!” Well, keep reading!!)
Employers (or their designated agent) must physically review documents. Hold-them-in-your-hands, turn-them-over-and-really-look review. Copies don’t count. That your coworker or hiring manager says that the person is “good” doesn’t count. Even if you’ve hired this person before, you must examine the document in its original form. An original passport. An original license. An original Form I-94. There are a few occasions where a receipt is acceptable, but it’s the exception not the rule.
All documents must be unexpired when they are presented (yes, expired U.S. passports used to be acceptable List A documents; that is no longer the case and hasn’t been for many years).
An employer’s (or its agent’s) responsibility is to review documents (in person!) and attest that they reasonably appear to be genuine and relate to the particular employee. You’re not expected to be a document expert, but the picture on the document should look like the person in front of you, and the names should match. There are lots of resources from the USCIS including I-9 Central, the M-274 I-9 Handbook, and just the form instructions themselves. Or, you can try calling them when you have specific questions. You can also call me! (My hold music is better. Actually, I don’t know how to use the hold function on my phone, so I may just sing to you.)
You’re almost to the end. Thanks for sticking with me.
Besides prohibiting employers from hiring unauthorized workers, IRCA also established prohibitions against national origin and citizenship or immigration status discrimination. In fact, there is an entire department within the Department of Justice to enforce the anti-discrimination provisions of the law called the Immigrant and Employee Rights Section (IER).
Discrimination of this nature is a very nuanced concept that goes way beyond me saying “just don’t do it.” The USCIS has laid out some pretty clear rules for you here. Refer to them often! You might be surprised at what is considered discrimination: over-documentation on the I-9, requesting specific documents from specific classes of people especially if it’s done intentionally, or refusing to hire anyone except U.S. Citizens (unless required by a state or federal contract).
You did it! You’re now a few knowledge nuggets closer to truly understanding I-9s than you were a few minutes ago. Or you’re more confused than ever and just need a good nap. Either way, please let me know if you have any questions. I’d love to chat!