Workforce.com

The Quest to Ask the Right I-9 Questions

March 23, 2012

The Immigration Reform and Control Act of 1986 requires all employers to verify the employment eligibility of employees and imposes significant penalties for the employment of unauthorized workers.

The challenge for employers is that they may neither ask too many questions nor too few. Failing to ask for enough information exposes employers to penalties under the act. Asking impermissible questions about an employee's ethnic heritage or national origin exposes employers to damages under the discrimination laws. With the number of government investigations steadily increasing, what should employers do to strike the proper balance?

Compliance with reform act begins and ends with the accurate completion and retention of I-9 forms. Even an employer not shown to have hired undocumented workers is subject to fines under the act for any errors or blank sections on the I-9 form. A completed I-9 form must be retained for all employees (citizens and noncitizens) hired after Nov. 6, 1986.

To properly complete Section One of Form I-9, the employee must first attest that he or she is a U.S. citizen, a lawful permanent resident, a noncitizen national or alien authorized to work in the United States. Critically, an employer may not request documentation to verify the information provided by the employee in Section One.

If the employer seeks more information, it may be in violation of the Immigration and Nationality Act's anti-discrimination provision, which prohibits employers from placing additional burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

Typically, the employment verification process must be completed by the employer within three business days of the employee's first day of work. The first step of the verification process requires an employee to present an original document or documents showing his or her identity and authorization to work in the United States.

The employer or employer's representative must review the documents in the presence of the employee to confirm that they belong to the employee and ensure that the documents are consistent with the information provided by the employee in Section One. The employee must be allowed to choose from the list of acceptable documents set forth on the I-9 Form.

In Section Two of the I-9 Form, the employer must attest that the required documents were inspected and that the documents appeared genuine on their face. For each document presented, the employer must record the type of document, its source and its expiration date. Failure to prepare an I-9 at all is among the most serious paperwork violations.

Employers are permitted, but not required, to keep copies of documents presented and attach them to the completed I-9 Form. Retaining copies may be used to show that the employer reasonably believed the employee was authorized to work in the United States.

But on the other hand, the documentation could be used against the employer to show the proper documents were not presented. Under either scenario, it is important that an employer apply the policy consistently to all employees, citizens and noncitizens alike.

The good news is that if these procedures are followed rigorously, an employer who does not know that an employee is not legally permitted to work may be immune from liability. To ensure that employers have the benefit of that defense, it is recommended that they conduct, at a minimum, yearly internal audits and training for those employees responsible for I-9 compliance. Of course, employers should consult with counsel if there are any questions or situations that need clarification.

Maxiel Gomez is a labor and employment law litigator at Pashman Stein in Hackensack, New Jersey. She has represented clients before state and federal courts and state administrative agencies in litigation involving wage and hour disputes, sexual harassment, pregnancy discrimination, sex and race discrimination, retaliation and family medical leave claims. She can be reached at mgomez@pashmanstein.com. To comment email editors@workforce.com.