You may not think that you need to worry about immigration paperwork for your company. After all, you may be a small local company, you hire family members or people you know for a fact to be born and raised in the U.S., so why would the USCIS care about your company? Actually, the USCIS requests that every company complete Form I-9 (even though they are not required to be filed with the USCIS) for every employee. Strictly speaking, this includes your own family members if they are employees. Even an owner of a corporate entity that employs the owner should have Form I-9 on file in the business personnel records.
Form I-9‘s purpose is to verify the worker’s eligibility to work in the United States by completing the form and providing the employer with facially valid documentation that verifies the worker’s identity and legal status to work in the U.S.
The most common documents used to validate identity and confirm legal status to work in the U.S. is a valid U.S. issued passport or a valid, unexpired state-issued driver’s license and a valid social security card allowing for work in the U.S. A U.S. passport alone is sufficient to prove both citizenship and identification.
Whatever documents that employees present to the employer, employers must make sure to make a good faith effort to review the document to confirm that it is a facially valid form of identification. Photocopies of documents, or documents that look like they have been compromised should raise a red flag. In the event an ID is deemed questionable, the employer should ask for another form of documentation in its place.
Form I-9 became a legal requirement by the Immigration Reform and Control Act of 1986 by the INS (now the USCIS). While many employers complete the form and keep it on file, the reasons and importance of the form are usually ignored. Employers may not find it necessary to adequately review the documents on a regular basis since it does not need to be filed. As a result, changes in some employees’ work authorization may not be caught, leaving the employer exposed to potential fines and penalties imposed by the USCIS if they are audited.
Like every rule, there are exceptions. Employers need not fill out and retain Form I-9 for the following workers:
- Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times. Also excepted are individuals hired for employment in the Commonwealth of the Northern Mariana Islands (CNMI) on or before Nov. 27, 2009.
- Individuals employed for casual domestic work in a private home on a sporadic, irregular or intermittent basis. This would mean if you hired a person to clean your home once without an expectation of repeat/regular work.
- Independent contractors or individuals providing labor to you who are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).
- Individuals not physically working in the United States
Since Forms I-9 are never filed with the USCIS, it is important to understand the effects of not completing and retaining the forms for every employee. There are different levels of fines and civil penalties which are determined by taking into account the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. Monetary penalties for knowingly hiring and continuing to employ the employee violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, including failing to produce a Form I-9, range from $110 to $1,100 per violation. A detailed list of the penalties can be found here.
A copy of Form I-9 along with a list of acceptable documents can be found at: http://www.uscis.gov/files/form/i-9.pdf . For information on how to store the Form I-9 and how long you must retain the forms with your records, please see our other articles: “How to store your Form I-9” and “Retaining Form I-9”.