Question

I am an employer who employs seasonal workers, and I am about to hire some new employees. I remember reading something about a change in the employment eligibility and immigration status documents that are now required. What documentation do I need, and what if a worker refuses to provide it?

Answer:

All U.S. employers are responsible for completing and retaining “Form I-9” for each individual they hire for employment. This includes citizens and non-citizens alike, and applies to seasonal workers as well. The purpose of Form I-9 is to verify the employee’s employment eligibility. In order to do this, the employee must present one or more specified identification documents to the employer, who then records this information on the Form I-9 and retains the form for their records.

Form I-9 contains an extensive list of documents that may be presented by an employee to prove his or her employment eligibility. These documents are divided into three categories: List A, List B, and List C. In order to prove his or her eligibility to work in the United States, an employee must present either one document from List A, or one document each from List B and List C. Examples of List A documents include a U.S. Passport or a Permanent Resident Card. List B and List C documents include a driver’s license, school ID card, U.S. social security card, and an original or certified copy of a birth certificate. Employers should carefully review the Form I-9 list of acceptable documents in order to ensure that they have received a suitable document or combination of documents from their employees.

In March of 2003, the Homeland Security Act transferred the functions of the former Immigration and Naturalization Service from the Department of Justice to the Department of Homeland Security (DHS). Form I-9 has been amended to reflect this transfer to DHS, and the list of permissible eligibility documents has been changed as well. For example, the following List A documents are no longer acceptable to prove employment eligibility: Certificate of U.S. Citizenship, Certificate of Naturalization, Unexpired Reentry Permit, and Unexpired Refugee Travel Document.

If a potential employee refuses to provide the proper eligibility documents, the employer should decline to hire that person or, if the person has already been hired, he or she should be terminated. An employer who fails to properly complete, retain, and/or present Form I-9 for inspection by law may be subject to civil penalties ranging from $110-$1,100 for each employee whose Form I-9 is not in compliance with the law.

Form I-9 is not filed with the U.S. Immigrations and Customs Enforcement or the U.S. Citizenship and Immigration Services, but is instead retained by the employer. The employer must keep a Form I-9 for each of its employees for three years after the date of hire, or for one year after the employee is terminated, whichever is later. The forms must always be available for inspection by authorized U.S. Government officials in the event that an employee’s status needs to be verified.

Employers can download Form I-9 from the U.S. Citizenship and Immigration Services (USCIS) website at:
http://uscis.gov/graphics/index.htm. Because the changes to the list of acceptable employment eligibility documents are quite recent, the list that is currently attached to the downloadable version of Form I-9 has not yet been updated. Employers should be aware of this when accessing the present version of the form on the USCIS website, and should make every effort to obtain the most up-to-date information possible when navigating that site.

Additionally, employers should note that no changes need to be made to Form I-9’s already on file for existing employees. While the new rules regarding acceptable eligibility documents will apply to any future employee, the rules are not retrospective and will therefore not affect those who are already in your employment.
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