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This article was originally published by the Wisconsin Chapter of the Associated Builders and Contractors in its August 2006 Merit Shop Talk newsletter.

IMMIGRATION AND EMPLOYMENT - DON'T FORGET THE I-9 FORM

By Douglas E. Witte

Given all the controversy over the past few months concerning illegal immigration and tightening the borders, it is likely some sort of immigration reform will be enacted in the near future.  Proposals such as electronic employment verification and biometric social security cards are being tossed around.  Whether reform comes in gradual steps or via sweeping legislation remains to be seen.  How exactly it will impact employers also remains to be seen.

In the meantime, employers must not forget they have a current obligation to comply with the Immigration Reform and Control Act of 1986.  This law prohibits the employment of "unauthorized aliens," penalizes employers who hire them, and requires all employers to determine whether each of their employees is legally entitled to work.  Failure to complete and retain the forms or employing unauthorized aliens can result in fines ranging from $100 to $10,000 or up to six (6) months in prison.

Certain trades in the construction industry seem to attract a large number of foreign born workers.  Many of these workers are authorized to work in the United States, however, many are not.  The construction industry is one sector where enforcement tends to be greater.  This is not a problem limited to Texas, Arizona or California.  It is a problem throughout the United States, including Wisconsin.

The law requires every employer to verify the employment eligibility of every employee hired after November 6, 1986.  Once hired, the employee and the employer must complete an I-9 form.  The form can be obtained at www.uscis.gov.  There is also a Handbook for Employers (Form M-274) on the site which provides more detailed information about the I-9 Form.  The I-9 form was reissued in May 2005 to reflect the Department of Homeland Security is now the agency in charge of compliance, however, it is the same basic form which has been around since last updated in 1991.  There have been proposals to modify and update the form, however, nothing appears imminent.

Employees are required to attest on the form that the employee is a citizen or national of the United States, a lawful permanent resident, or an alien authorized to work in this country.  The employee must also produce a document or documents within three (3) business days of being hired that establish his or her identity and his or her employment eligibility.  If you hire someone for less than three (3) days, the form must be completed at the time employment begins.  The documents presented must be originals (except a certified copy of a birth certificate is acceptable).  The list of documents for each purpose is listed on the back of the I-9 form.  (Note: Some of the documents listed on the back are no longer accepted or issued.  Information concerning those documents can also be found on the website listed above.)  If an employee does not have the actual document, a receipt showing they have applied for the document or a replacement document is sufficient as long as the actual document is produced within 90 days.

An employer cannot require an employee to produce a particular document from the list.  Employees may produce any documents which are acceptable.  Some documents have expiration dates and an employer will need to reverify employment eligibility prior to the date the work authorization expires.  You may wish to establish some sort of reminder system for that purpose.

An employer is required to review the documents produced to make sure they appear genuine and relate to the individual in question.  Employers are not required to be document experts, but will be held to a reasonableness standard.  Thus, you should take some care to make sure the document appears genuine and relates to the employee who you hired.  If you have doubts about the genuineness of a document you can call your nearest immigration field office for assistance (see website).  Some employers choose to photocopy the documents which are presented and attach them to the I-9 form in case a question later arises.  We think this is a good idea.  If you do photocopy documents, make sure you do so for all employees, without regard to citizenship or national origin.

I-9 forms must be retained by the employer for three years after the employee's date of hire or one year after the employee's termination, whichever is later.  Thus, you should have an I-9 form for every current employee hired after November 6, 1986 and all terminated employees within the retention period.  These forms must be produced to authorized officials of the Bureau of Immigration and Customs Enforcement, Department of Labor or the Justice Department, upon three (3) days notice.  We recommend that all I-9 forms be stored in one binder, rather than in personnel files, particularly if you have a large number of employees.

Conducting regular self audits can help insure that I-9 forms are filled out correctly and completely.  If mistakes or omissions are found they should be corrected immediately, but documents should never be backdated.  If new I-9 forms need to be filled out to correct the mistake, employers should keep both forms.

In addition to the verification requirements, the Act prohibits discrimination in hiring and firing based on national origin or citizenship.  Thus, it is not a solution to hire only United States citizens.

Given the current climate surrounding illegal immigration, employers would be wise to make sure their I-9 forms are complete, accurate and up-to-date.

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This page is intended to provide general information about various legal issues and developments.  It is not intended to be a complete list of all recent legal developments.  This page does not constitute legal advice and should not be relied upon in dealing with specific factual or legal matters.