Completing Form I-9 #Q0999ED

Transcription

1 Completing Form I-9 #Q0999ED

2 How to Complete the Form I-9 On December 17, 2008, the Department of Homeland Security (DHS) revised the Form I-9. Among the mandatory revisions, employers may no longer accept expired documents to verify employment authorization. Also, the form reduces the number of documents that employees may present to establish their identity and work authorization (List A of the Lists of Acceptable Documents ). Several documents were removed from this list: Form I-688, Temporary Resident Card Form I-688A, Employment Authorization Card Acceptable documents under List A now include: U.S. passport or U.S. passport card Permanent Resident Card or Alien Registration Receipt Card (Form I-551) Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machinereadable immigrant visa Employment Authorization Document that contains a photograph (Form I-766) In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association between the United States and the FSM or RMI Form I-688B, Employment Authorization Card Certain instructions for Form I-9 were modified as well, and the DHS changed Section 1 (Employee Information and Verification) on the Form I-9. In Section 1 of the revised Form I-9, an employee can now attest to being either a citizen of the United States, noncitizen national of the United States, lawful permanent resident, or an alien authorized to work in the USA. This E-Guide will explain how to complete the Form I-9 so you can be confident your business is in full compliance. ComplyRightNow E-Guide Completing the Form I-9 1

3 Overview of Form I-9 The Form I-9 contains three sections. The employee must complete Section ❶ on the day he or she starts work. The employer must complete Section ❷ within three days of the employee s start date. Section ❸ also is completed by the employer, but only under certain circumstances. As an employer, you are responsible for making sure that all sections of the Form I-9 are properly completed within the allowed time. ❶ ❷ ❸ ComplyRightNow E-Guide Completing the Form I-9 2

4 Section 1: To be completed by the Employee Step 1 Fill in the personal information. Step 2 Check the box for work eligibility. Fill in other information, if applicable. Step 3 Read, sign and date. Step 4 (Preparer/Translator only) Read, fill in information, sign and date. ComplyRightNow E-Guide Completing the Form I-9 3

5 I-9 Form, Section 1. Employee Information and Verification All employees (citizens and noncitizens) hired after November 6, 1986, must complete Section 1 of the Form I-9 on their first day of work. Employee s Responsibility: To complete Section 1, an employee must: 1. Provide all of the requested information, including name, address and date of birth. Note: An employee does not have to provide his or her Social Security number in Section 1 of the Form I-9. This information is optional, unless the employer is participating in the DHS s voluntary E-Verify program. 2. Complete the attestation block by checking one of four boxes: A citizen of the United States A noncitizen national of the United States (see instructions) A lawful permanent resident (Alien #) The Alien # for permanent residents generally can be found on the Alien Registration Receipt Card or Permanent Resident Card (Form I-551), or as a Form I-551 Stamp on a separate document. It is preceded by the letter A and typically includes 8 or 9 numeric digits. An alien authorized to work (Alien # or Admission #) until (expiration date, if applicable month/day/year) / / 3. Sign and date where indicated in Section 1. Employer s Responsibility: An employer must: 1. Make sure each employee completes Section 1 in its entirety on his or her first day of work. 2. Make the Form I-9 Instructions page available to employees when completing Section Provide assistance or a translator, if requested. If an employee cannot complete Section 1 independently or needs the form translated, the employer must assist the employee. The preparer or translator should read the form to the employee, help him or her complete Section 1, and have the employee sign or mark the form in the appropriate places. The preparer or translator then must complete the Preparer and/or Translator Certification block at the end of Section 1. If the assistance is provided by the employer, the employer should fill in and sign this block. ComplyRight Tip Do not ask for documentation to verify information in Section 1. If an employee writes down an Alien # or Admission # in this section, you may not ask to see a document to verify the number or otherwise specify documents an employee may present. Although it is your responsibility as an employer to ensure that your employees fully complete Section 1 on their first day of work, employees are not required to present any documentation at this point in the process. ComplyRightNow E-Guide Completing the Form I-9 4

6 4. Review Section 1 for errors and omissions after the employee completes it. Check the dates to make sure the employee used the correct dating format (month/day/year). This is a very common error, because dating formats vary in other countries, most typically by reversing the day and month. (May 1, 2006, for example, might be entered as 1/5/2006 instead of 5/1/2006.) Verify that the employee provided the actual address where he or she resides, as opposed to a P.O. box. Make sure the employee checked one of the boxes in the attestation block, and that he or she provided an Alien # or Admission #, if applicable. Confirm that the employee signed and dated the form. The employee s signature and attestation under penalty of perjury are very important. If an employee refuses to provide his or her signature or attestation, there is no reason to proceed to Section 2, and the employee may be terminated (so long as you enforce this consistently). Section 1, Common Mistakes Not requiring employees to complete Section 1 on their first day of work. Accepting the form without an employee signature and date. Missing or incorrect Alien # or Admission # in the attestation box. Accepting the form with a wrong date or incorrect dating format. Rejecting candidates because they cannot provide a Social Security number. I-9 Form, Section 2. Employer Review and Verification The second step in the verification process requires you (the employer) to examine and list the documents presented by the worker to establish his or her identity and employment eligibility. You must review an employee s documentation and complete Section 2 of the Form I-9 within three business days of the employee s start date. Quick Steps for Completing Section 2 To complete Section 2, you must: 1. Allow employees to select which documents to provide based on the list of acceptable documents designated by the DHS. 2. Review original documents and accept documents that reasonably appear to be genuine and belonging to the employee. Make sure to check expiration dates on all documents to ensure they are valid and up to date. 3. Record the document title, issuing authority, document number and expiration date, if any. 4. Record the employee s start date. 5. Sign and date the Certification section. 6. Print the name and address of your business or organization, and the name, address and title of the individual signing the Certification on behalf of your company. ComplyRightNow E-Guide Completing the Form I-9 5

7 Section 2: To be completed by the Employer 5 6 OR 5 6 Step 5 E xamine the document(s) and fill in the document title, issuing authority, number and expiration date (if any) in the space provided. Step 6 arefully read, fill in information (including the date employment begins C in the Certification, and your company name and address), sign and date. Understanding the List of Acceptable Documents The documents an employee may present to establish his or her identity and work eligibility are listed on the reverse side of the Form I-9. Three groups of documents can be used for this purpose: Documents described in List A are sufficient to establish both identity and work eligibility. Documents described in List B establish identity only. Documents described in List C establish work eligibility only. To establish both identity and work eligibility, as required by law, an employee must provide either one document from List A or a combination of one document from List B and one from List C. ComplyRightNow E-Guide Completing the Form I-9 6

8 Guidelines for Verifying Documents Mishandling the document review process can present significant risks for employers. Follow these guidelines to protect yourself from potential fines, costly lawsuits and even imprisonment: Let the employee decide which documents to present. That includes allowing the employee to present either one document from List A (establishing both identity and work eligibility) or a combination of one document from List B (establishing identity) and one document from List C (establishing work eligibility). Requiring specific documents is illegal, and can expose you to discrimination claims. Require employees to show you original documents. Photocopies, or numbers representing original documents, are not acceptable. The only exception to this is a certified copy of Do not ask for specific documents. a birth certificate issued by a state, county, municipal authority or outlying possession of the United States (List C, Item No. 4). Do not ask for more, or different, The copy must bear an official seal. All identifying information, documents than minimally required. including the document title, issuing authority, document Do not accept more, or different, number and/or expiration date (if applicable) must be fully documents than are minimally visible on the copy. required, even if the employee Confirm that the documents reasonably appear to belong to offers them. the employee. You should check, for example, that the name on the Social Security card is the same as the name on the state driver s permit, and that the photo on the driver s permit matches the employee. If an employee presents a document that doesn t appear to match his or her identity, you should reject the document and ask the employee to present another item from the list of acceptable documents. ComplyRight Tip Make note of documents that have future expiration dates. Remember, you cannot refuse to hire an individual just because his or her work authorization expires on a future date. In fact, future expiration dates may appear on documents issued to permanent residents, temporary residents, refugees, and even individuals with permanent work authorization. If an employee presents a ComplyRight Tip document with a future expiration date, record the expiration date in Section 2, mark the date in your calendar or reverification Employers may use the Form I-9 with schedule, and make sure to reverify the employee s work revision date 02/02/09 or 08/07/09. authorization on or before the expiration date. Section 3 of the The revision date can be found on the Form I-9 is used for reverifications. lower-right corner of the form. Both are accepted by the DHS. ComplyRightNow E-Guide Completing the Form I-9 7

9 Make sure the individual who reviews the original documents is the same person who completes and signs Section 2. The personal attestation and signature of the employer are extremely important. The individual who reviews the original documents whether that person is the employer or an agent of the employer (such as a provider of contract services) must sign and date the Form I-9. It is absolutely essential that the person who signs Section 2 is the same person who reviewed the employee s document(s). Terminate employees who do not present the required I-9 documentation (or valid receipts with timely follow-up) within three business days of their start dates. If you keep an employee without the proper documentation, you could be subject to penalties for improperly completing the I-9 form or, worse, for knowingly continuing to employ an unauthorized worker, if the employee is indeed an illegal alien. Be sure to apply this strict termination policy consistently to avoid potential claims of discrimination. Copying Employee Documentation Although you are not required to, you may choose to photocopy an employee s verification documents (front and back) as part of your I-9 verification process. Keep in mind that making copies of an employee s documents is not a substitute for completing Section 2 of the Form I-9. With or without copies, you still must record all of the information about the documents on the form. If you do decide to photocopy employee documents, be sure to do so for all employees; limit copies to the specific documents required for I-9 purposes, and file the copies with the corresponding I-9 forms. Section 2, Common Mistakes Recording more documents than are required (for example, more than one document from the same list, or documents from Lists A and B, or A and C). Listing documents in the wrong columns. Requiring specific documents, such as a green card or Social Security card. Accepting a Form I-94 without a foreign passport to satisfy List A. Recording foreign passport information (List A) without the required accompanying document information (I-551 Stamp or Form I-94). Recording a U.S. visa number instead of a foreign passport number (List A) or Form I-94 Arrival/Departure Record (List A). Not recording the employee s start date. Completing/dating Section 2 more than three days after employee s indicated start date. Leaving out document numbers or expiration dates. Not including the name of the employer s business and business address. ComplyRightNow E-Guide Completing the Form I-9 8

10 I-9 Form, Section 3: Updating and Reverification As an employer, you are required to reverify an employee s work authorization documents if: The employee s work authorization status (indicated in Section 1) expires; The employee s work authorization document (recorded in Section 2) expires; or You rehire an employee within three years of completing a Form I-9 for that employee. This corresponds to the minimum retention period for the I-9 form, so you still should have the employee s original form on hand. In this case, you should complete Section 3 of the original Form I-9 rather than completing a new form for the employee. If you rehire an employee within this time and the employee s work eligibility status (as recorded in Section 1) has not changed, you do not have to reexamine the employee s work authorization document. However, you still should complete Section 3 of the Form I-9. This is considered an update rather than a reverification. Section 3: To be completed by the Employee Step 7 Fill in the new name and/or date of rehire (if applicable). Step 8 E xamine the document(s) and fill in the document title, number and expiration date (if any) in the space provided. Step 9 Read, sign and date. ComplyRightNow E-Guide Completing the Form I-9 9

11 Quick Steps for Completing Section 3 1. If the employee s name has changed at the time the form is being updated or reverified, complete Block A. ComplyRight Tip 2. If a current employee s work authorization status or documentation is about to expire: In Section 3, as in Section 2, the Ask the employee to present a document that shows person who examines the employee s his or her continued authorization to work in the USA documents must be the same person (any document from List A or C); who signs and dates the attestation Record the document title, document number at the bottom of the form. and expiration date (if any) in Block C; and Complete the signature block. 3. If you rehire a former employee within three years of the date the form was originally completed and the employee s work eligibility status has not changed, complete Block B ( Date of rehire ) and the signature block. 4. If you rehire a former employee within three years of the date the form was originally completed and the employee s work authorization has expired, complete Block B and: Ask the employee to present a document that shows his or her authorization to work in the USA (any document from List A or C); Record the document title, document number and expiration date (if any) in Block C; and Complete the signature block. ComplyRight Tip Be sure to closely monitor document expiration dates. You should put in place a reliable system for tracking expiration dates and activating reminders for upcoming reverifications. For example, if you store your completed I-9 forms in a file folder or binder, consider tabbing the forms that have upcoming expiration dates and/or listing them by date on a reverification schedule. Or, you can use an electronic calendar call-up system to alert you of upcoming reverifications. It is a good idea to give employees at least 90 days notice of upcoming expirations, because USCIS typically takes up to 90 days to process applications for work authorization. ComplyRightNow E-Guide Completing the Form I-9 10

12 Section 3, Common Mistakes Missing an expiration date and allowing an employee to continue working without legal authorization. Untimely or unnecessary reverification. Accepting a receipt showing an employee has applied for an extension of an expired employment authorization document. Not updating or reverifying the work eligibility of an employee who is rehired within three years of completing the original Form I-9. Not completing a Form I-9 for an employee who is rehired after a three-year lapse in employment. Omitting signature and/or date. ComplyRightNow E-Guide Completing the Form I-9 11

13 Key Points The Form I-9 has three sections: Section 1 is completed by the employee; Section 2 is completed by the employer for all employees; and Section 3 is completed by the employer only if necessary to reverify the employee s work eligibility. Every employee must complete Section 1 of the I-9 form on his or her first day of work. The employer must complete Section 2 of the I-9 form within three days of the employee s first day of work. The employer must complete Section 3 before the employee s work authorization or work authorization document expires, OR if the employer rehires an employee within three years of the original I-9 completion date for that employee. The employer is responsible for making sure all three sections of the Form I-9 are completed within the allowable times. The employee must present documentation to the employer proving both identity and work eligibility within three days of starting work. The employee may choose which documents to present to the employer from the list of acceptable documents. The three categories of acceptable documents are: List A documents are used to prove both identity and work eligibility. List B documents may be used to prove only identity. List C documents are used to prove only work eligibility. An employee may choose to present one document from list A OR a combination of one document from List B plus one document from List C. Continued ComplyRightNow E-Guide Completing the Form I-9 12

14 Key Points Continued The government has made recent changes to the list of acceptable documents on List A. See page 1 for an updated List A. The employer never should ask for, or accept, more documents than are required, even if the employee offers them. Employees must present original documents for review by the employer. A photocopied document is not acceptable, unless it is a certified copy of a birth certificate with an official seal. The employer must confirm that each document presented by the employee appears to belong to that employee. Check names and photographs on each document. Some documents on List A and List C have expiration dates and need to be reverified before they expire. It is the employer s responsibility to schedule and conduct a reverification before the expiration date. The individual who reviews the employee s documentation on the employer s behalf must also be the person who signs Section 2. The same rule applies for Section 3. Continued ComplyRightNow E-Guide Completing the Form I-9 13

15 Key Points Continued Photocopying employees verification documents is optional but advisable. However, employers who choose to take this extra precaution should make sure they do so consistently for all employees, limit the photocopies only to the specific documents required for verification, and file the copies together with the I-9 forms. Employers must reverify an employee s work authorization status by completing Section 3 of the Form I-9 if: (1) the employee s status changes; (2) the employee s documentation expires; or (3) the employer rehires the employee within three years of completing an I-9 form for that employee. An employee who cannot present the required documentation within three days of hiring should be terminated. An employee whose work authorization or documentation expires, and who cannot present new documentation proving he or she is authorized to continue working, also should be terminated. This product is designed to provide accurate and authoritative information. However, it is not a substitute for legal advice and does not provide legal opinions on any specific facts or services. The information is provided with the understanding that any person or entity involved in creating, producing or distributing this product is not liable for any damages arising out of the use or inability to use this product. You are urged to consult an attorney concerning your particular situation and any specific questions or concerns you may have. Important note: This product is approved for use by the purchaser only. This product may not be shared publicly or with third parties. ComplyRightNow E-Guide Completing the Form I-9 14

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