Employment verification is not required for people hired prior to November 7, Employees, including individuals in the country illegally, have grandfathered status if their employment began prior to November 7, , and "continues. Employees lose grandfathered status when they are lawfully terminated by the employer, quit or do not have a reasonable expectation of re-employment.
The U. Employers can find the most current form on the U. An employee must complete Section 1 of Form I-9 by his or her first day of work.
The employer must complete Section 2 of Form I-9 by the end of the third business day, or within 72 hours after employment commences, even if the employee is not scheduled to work for some or all of that period. For persons hired for three days or less, the entire form must be completed no later than the first day of work for pay. Employers are not prohibited from completing I-9 verification before employment begins if an employment offer has been made and accepted.
Are there exceptions to the I-9 requirement? To complete Form I-9, the employee is required to present certain documents proving identity and employment eligibility. The employer is responsible for completing Section 2 of Form I-9 by examining the documents presented by the employee and recording the document numbers and expiration dates in the appropriate columns.
The employer must then certify on the form that the documents a reasonably appear to be genuine, b relate to the individual and c authorize the individual to work. Form I-9 lists the documents that are acceptable to complete the process. Copying documents presented by the employee is permitted and is a common practice so that employers can prove compliance with the requirements of Form I-9, but there is no requirement to make and retain copies of documents. If copies are made, employers should ensure that the policy is consistently followed in all situations.
It is helpful to attach the copied documents to the employee's Form I-9 so that the documents do not get separated in the filing process. The copies may be useful to correct problems identified during a periodic self-audit or in advance of a government audit. The need for reverification is triggered by the document presented by the employee and by the box the employee checks in Section 1 of Form I Employers should create a system to remind them when the employee's documents will expire and need to be reverified.
Failure to make a timely reverification can be construed as knowingly continuing the employment of an immigrant who lacks authorization to work.
Reverification is accomplished by examining a new work authorization document and completing Section 3 of the form. Reverification is not necessary for identity List B documents. Employers must retain an employee's completed Form I-9 for as long as the individual works for the employer. Once the individual's employment has terminated, the employer must determine how long after termination the Form I-9 must be retained, which is either three years after the date of hire or one year after the date employment is terminated, whichever is later.
Employers must be careful not to go overboard in their employment verification practices. But if employers become overzealous in trying to deny employment to undocumented immigrants, they may run afoul of anti-discrimination and anti-retaliation provisions in IRCA and other federal laws—as well as similar state laws. Knowingly hiring or continuing the employment of an unauthorized worker hired after November 6, may result in civil fines.
See Form I-9 Inspection Overview. The IRCA discrimination provisions do not apply to employers with three or fewer employees, but employers should not view that as a license to discriminate. State laws against discrimination on these bases often apply to all employers, regardless of how many employees they have.
IRCA discrimination provisions prohibit retaliation against people who initiate, assist or participate in discrimination charges. It is also unlawful for an employer to specify what documents an employee may present to prove identity or employability.
An employer may not insist on seeing more documents than are minimally necessary to complete Form I The employer may not refuse to accept documents that appear to be reasonably genuine. Collectively, these amended discrimination provisions are referred to as "document abuse. The amount of any penalty is determined based on the size of the business revenue, payroll and number of employees , the good faith of the employer, the seriousness of the violation, whether the employee was unauthorized and the history of the company with regard to previous violations.
A good-faith attempt to comply with the requirements of IRCA may be sufficient to avoid penalties except when the employer fails to correct deficiencies within 10 days of notice by the DHS or is engaging in a pattern or practice of violations. An employer that is found to have engaged in a pattern or practice of knowingly hiring undocumented immigrants or that continues to employ people in the country illegally despite knowing they are not authorized to work in the United States may be subject to fines, six months' imprisonment or both.
Individuals who use fraudulent documents or documents that belong to another person to verify employment eligibility document fraud may be fined, imprisoned for up to five years or both. Employers found to have engaged in unfair immigration-related practices may be required to hire or reinstate with or without back pay employees subjected to the discrimination, post notices regarding employee rights and employer obligations, and educate personnel involved in hiring and employment verification as to the requirements of the law.
The DHS uses the criminal provisions of the U. In addition, if an employer's Form I-9 compliance is very poor, or if an employer employs a substantial number of undocumented immigrants, the DHS may conclude that the employer should have known that those workers were not authorized to work in the U. It is a crime to:. Form I-9 Fines Raised for The good-faith provision of the law, which allows people committing technical or procedural failures on a Form I-9 up to 10 days to correct such failure without penalty, does not apply to a person or entity that has engaged in or is engaging in a pattern or practice of employing, recruiting or referring unauthorized workers.
To ensure compliance with the law, employers must accurately complete Form I-9 at the outset. Mistakes happen, however, and HR professionals may later discover errors on these forms. It is good practice to periodically audit and make any necessary corrections to the I-9s. Some Form I-9 errors are technical and can be corrected, but others are substantive and could require new I-9s in addition to the original forms.
Periodic self-audits and corrections may assist employers in demonstrating a good-faith effort to comply with the law in the event of a government audit. Click here to read more about how we use cookies. David Garrett. To embed, copy and paste the code into your website or blog:.
Send Print Report. Published In: E-Verify. Employer Liability Issues. Employment Eligibility Verification. And those who are able to win lawsuits against the government over such errors, often do so long after the fact, potentially months or years after being prevented from working, and already having suffered significant harm. Unless mandatory E-Verify is accompanied by guest worker and visa reform provisions sufficient to meet employer demand, industries that have a shortage of legal workers will face serious worker shortages.
Employers would essentially be faced with a choice between breaking the law, operating with dramatic labor shortages, or outsourcing to other countries that have sufficient workers. Moving to mandatory E-Verify would also impose significant costs on employers, who would need to devote time and resources to worker verification. While this cost might be marginal for some employers, particularly larger employers with fully-staffed human resources departments, it would likely to lead to hardship for smaller employers.
The National Immigration Forum would like to thank Sarah Rosenberg, policy intern, for her extensive contributions to this fact sheet. What is E-Verify? Is E-Verify mandatory? Which industries use E-Verify the most? Rank Industry Hiring Sites 1. Professional, Scientific, and Technical Services , 2. Food and Drink Services , 3. Administrative and Support Services , 4. Specialty Trade Contractors , 5.
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