Franchising World May 2012
By: Rebecca Morris
One of a company’s first responsibilities upon hiring a new employee is to complete an I-9 form (Employment Eligibility Verification). The I-9 form is intended to verify an individual’s identity and eligibility to work in the United States. There are specific rules concerning when and how the I-9 form must be completed. Failure to properly complete and retain the I-9 as required by law may result in fines of up to $1,100 per violation.
The following are answers to some of the most common I-9 questions.
1. What is the deadline for completing the I-9 for a new hire?
Section 1 of the I-9 form must be completed by the end of the employee’s first day of work for pay. Section 2 must be completed within three business days following the first day of work for pay. For example, if an employee begins work on a Monday, Section 2 of the form must be completed by Thursday.
2. Can I specify which documents I will accept for I-9 purposes?
No. The employee has the right to choose which documents to submit, provided they are on the I-9’s list of acceptable documents (a complete list can be found on the last page of the I-9 form). Employees must present documents that establish identity and work authorization. This means either: one document from List A or one document from List B and one document from List C.
If a company participates in E-Verify, it may only accept List B documents that bear a photograph.
3. Is a business required to photocopy an employee’s I-9 documentation?
In general, there is no requirement for employers to make photocopies of the documentation provided by an employee to establish his or her identity and work authorization. However, if the employer does retain copies, it must do so consistently for all new hires. Photocopies should be kept with the employee’s I-9 form.
If a company participates in E-Verify and the employee presents a document used as part of Photo Matching (currently the U.S. passport and passport card, Permanent Resident Card, and the Employment Authorization Document), the employer must retain a photocopy of the document.
4. Can a business accept a photocopy of a document? How about an expired document?
Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate. In addition, employers cannot accept expired documents for I-9 purposes.
5. What is a company’s responsibility concerning the authenticity of documents presented?
A company must examine the document(s) and if they reasonably appear on their face to be genuine and to relate to the person presenting them, it must accept them.
6. Are the document requirements different for minors?
If a person under the age of 18 cannot present an identity document (i.e., a document from List B), he or she may establish identity if:
• The parent or legal guardian of the minor employee completes Section 1 and writes “Individual under age 18” in the signature space;
• The parent or legal guardian completes the Preparer and/or Translator Certification block; and
• The employer enters “Individual under age 18” under List B and records the List C document the minor presents.
Even though the minor is not required to present an identity document if he or she does not have one, he or she must still present documentation that establishes work authorization.
7. How long is an employer required to retain the I-9?
I-9 forms must be retained for at least three years or for one year following the employee’s separation from the company, whichever is later. For example, if an employee retires from the company after 20 years, the employer must retain his or her I-9 form for a total of 21 years from his or her date of hire.
8. A company is rehiring a former employee. Does it have to complete the I-9 again?
If more than three years have passed since the individual initially completed the I-9, he or she must complete a new I-9. Otherwise, the employer may reverify the employee’s employment eligibility by completing Section 3 of the form.
9. What does an employer do when an employee’s employment authorization expires?
When an employee’s employment authorization document expires, the employer must reverify his or her employment authorization prior to the date of expiration using Section 3 of the I-9 form. The employee must present an acceptable document that shows either an extension of his or her initial employment authorization or a new employment authorization. If Section 3 has already been used for a previous reverification or update, use a new I-9 form. If a new I-9 is used, write the employee’s name in Section 1, complete Section 3, and retain the new I-9 with the original.
If the version of form I-9 that was used for the employee’s original verification is no longer valid (i.e., a revised/updated version of the I-9 form has since been released by the U.S. Citizenship and Immigration Services or USCIS, the employer must complete Section 3 of the current I-9 form upon reverification and attach it to the original I-9.
Not all expired documents require reverification. The following documents may not be subject to reverification: a U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551) or a List B document that has expired during employment.
10. What does a company need to do if an employee’s name has changed?
While the employer isn’t required to update the I-9 form when an employee changes his or her name, the USCIS recommends that the employer note any name changes in Section 3.
An employer may, but is not required to, take steps—such as asking the employee for the basis of the name change—to be reasonably assured of the employee’s identity and the authenticity of the name change. Additionally, a business may accept evidence of the name change if provided by the employee and keep it with the employee’s I-9.
11. A new hire presents documentation verifying that the he is authorized to work in the United States, but the employee’s employment authorization is set to expire in 30 days. Can an employer refuse to hire the employee because of this?
No. An employer is prohibited from refusing to hire an individual solely because his or her employment authorization has an expiration date. If an employee’s employment authorization expires during his or her employment with your company, the employer must reverify employment eligibility by completing Section 3 of the I-9 form, or if Section 3 has already been used for a previous re-verification or update, use a new I-9. Re-verification must occur no later than the date in which employment authorization expires.
12. A company and its employees are acquired by another company. Is the acquiring employer required to complete I-9 forms for these employees?
Employers who have acquired another company or have merged with another company have two options:
• Option A: Treat all acquired employees as new hires and complete a new I-9 form for each individual. Enter the effective date of the acquisition or merger as the date the employee began employment in Section 2 of the new Form I-9; or
• Option B: Treat acquired individuals as employees who are continuing in their uninterrupted employment status and retain the previous owner’s I-9 forms for each acquired employee. Note that the acquiring employer would be liable for any errors or omissions on previously completed I-9s.
The USCIS Handbook for Employers: Instructions for Completing Form I-9, available at http://www.uscis.gov, addresses the issues covered above along with many others. Review the guide carefully and train those responsible for completing and retaining I-9 forms accordingly.
Rebecca Morris is the content development manager for ADP® HR411®. Whether it’s HR, payroll or benefits, ADP provides the services and insights that let you focus on what matters: growing your franchise. For more information, contact Vice President, Franchises & Affiliations Deepak Mehta at 973-712-3367 or email@example.com.
This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services. ADP does not give legal advice as part of its services. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the state or municipality. This material is made available for informational purposes only and is not a substitute for legal advice or your professional judgment. You should review applicable law in your jurisdiction and consult experienced counsel for legal advice.
© 2012 ADP, Inc.