By Lori Stewart, SPHR®, SHRM-SCP, HCS, Partner, Human Resources Consulting

With the spotlight on immigration by the current administration, employers should be prioritizing their processes for the Form I-9. Form I‐9 requirements come out of the Immigration Reform and Control Act of 1986 (IRCA) and is governed by the U.S. Citizenship and Immigration Services (USCIS). All employers, regardless of industry or company size, are required to comply with USCIS regulations. The IRCA prohibits employers from hiring and employing workers for Employment in the United States who willfully know these workers are not authorized for such employment. Employers also are prohibited from continuing to employ an individual knowing he or she is unauthorized for employment. This law also prohibits employers from hiring someone, including U.S. citizens, for employment in the United States without verifying his or her identity and employment authorization on Form I‐9. The Form I-9 is required for all employees hired after Nov. 6, 1986, and the form must be completed by both the employee and Employer or authorized representative by a specified date.

Changes were released in November of 2016, which you can read about in this blog, but other necessary changes prompted another new form to be released on July 17, 2017. This revised version should have been implemented into your onboarding process no later than Sept. 18, 2017. The latest version of the form expires Aug. 31, 2019.

Some employers have questioned how the Deferred Action for Childhood Arrivals (DACA) policy comes into play in regard to the Form I-9, given the currently pending legislative changes. When it comes to DACA, employers should make no attempt to identify potential DACA employees in their organization through the Form I-9 or personal questioning. There are currently over 800,000 individuals under this program, so attempting to identify puts your organization at an increased risk for employment discrimination. Employers should continue their I-9 process as normal, including onboarding, reverifying when required, and following a consistent practice.

Important takeaways to remember:

• If you retain copies of identification for the Form I‐9, ensure you save copies for all employees; otherwise, retain none.
• Employees must complete/sign Section 1 by their first day of pay and must present acceptable documents by the third day of employment. If they cannot or refuse, they are ineligible to work and should be sent home without pay.
• The instructions are an important resource and must be available to employees when completing the form. https://secure.i9.talx.com/Popups/Documents/I-9InstructionsNew.pdf
• An employer cannot require specific documents to be presented.
• Civil fines, criminal penalties, debarment from government contracts, and court orders issuing back pay can be assessed by Department of Homeland Security for form violations ranging from $200‐$3,200 per violation and up to six months in prison for a first-time offense.
• When Form I‐9s are absent from an employer’s organization, the forms should be completed immediately. All forms should be dated as of current (never backdate the information) with a note explaining why all dates are the same.

If you have questions on the Form I-9, or other human resource concerns, please contact us at 888-556-0123, email [email protected] or fill out our form.