• Aiding Homeland Security: Heightened Scrutiny of the INS Form I-9
  • June 27, 2003 | Author: Diana K. Wieland
  • Law Firm: Sheehan Phinney Bass + Green, Professional Association - Manchester Office
  • Since the tragedy of September 11, all citizens have been called on to assist with homeland security. One small way employers participate in this effort is by ensuring that their employees are who they say they are and are eligible to work in our country. To be eligible to work here, they must be in this country legally and duly registered. The Immigration and Naturalization Service will pay especially close attention to whether employers comply with their obligations under the Reform and Control Act of 1986. Remember, this law applies to ALL employers without regard to size or industry. Failure to comply can result in fines and, ultimately, jail time. This is not the time to be sloppy about record keeping.

    The I-9 form is very EASY to complete, yet employers routinely fail to do so correctly. The employer must have a completed I-9 from EVERY employee hired after November 6, 1986 (no one cares that you have known the employee since birth). The first step is for the employee to present document(s) establishing his identity AND his eligibility for employment in this country. The employer must permit new hires to present any document listed on the I-9. An employee must present one document from List A which establishes identity and work eligibility OR one document from List B to prove identity and one from List C for eligibility. Do NOT accept any other documents--hunting licenses do not count. Also, do NOT accept photocopied, altered or laminated documents (unless they come from the government laminated, e.g., drivers license).

    The employer must accept the listed documents if they appear to be genuine on their face. However, the employer cannot blindly accept anything the employee offers. Some employees in the area have been submitting fake Social Security cards which do not look like anything like the real thing. If you do not know what one looks like, go to http://nces.ed.gov/naal/defining/document/ssc.asp. An employer runs a real risk today by accepting a fake and there is no excuse for accepting questionable documents.

    Employers are not required to keep copies of these documents. However, keeping copies does not remove the obligation to FILL OUT THE FORM. The employer is NOT in compliance if the entire I-9 is not completed┬┐don't get lazy. Inspect the documents (yes, you actually have to look at them┬┐this cannot be done long distance or by fax), fill out all employer portions of the form, sign and date it and make SURE the employee has filled out his entire section. Note that, if the name on the documents does not match the employee's name, do NOT accept them, even if the employee claims she changed her name upon marriage. The government does not care and she should get new documents for many reasons. Do not make it your problem.

    Effective September 30, 1997, the INS released an interim rule, which eliminates some types of documents. Employers must review I-9s and remove the documents now disfavored by the INS. This process will help to discover if an employee's employment authorization documents have expired. If this occurs, the employee has ninety (90) days to submit new/replacement documents. This exercise will be easy if you keep all I-9s in one file in chronological order; do NOT keep them in the personnel files.

    • Four Documents Removed from List A:
      • Certificate of U.S. Citizenship (INS Form N-560 or N-561);
      • Certificate of Naturalization (INS Form N-550 or N-570);
      • Reentry Permit (INS Form I-327);
      • Refugee Travel Document (INS Form I-571)

    • Redesignate the foreign passport with temporary evidence of permanent resident status, and limit use of the foreign passport with a Form I-94 to nonimmigrants authorized to work for a specific employer.

    • Clarify and expand the receipt rule. Provisions include:
      • Application for a replacement document. A receipt displaying an application for a replacement document is acceptable, but an application for initial work authorization or an extension of expiring work authorization is not acceptable. After 90 days, the actual document must be presented.
      • INS Form I-94 indicating temporary evidence of permanent resident status. A lawful permanent resident may use the arrival portion of Form I-94 (Arrival-Departure Record) that the INS has marked with a temporary I-551 stamp and has affixed with the alien's picture. The INS may issue this document if an alien is not in possession of a passport and requires evidence of lawful permanent resident status. After 180 days, Form I-551, Alien Registration Receipt Card ("green card") must be presented.
      • INS Form I-94 indicating refugee status. A refugee may provide the departure portion of Form I-94 showing a refugee admission stamp. After 90 days, either an unrestricted social security card (along with a List B identity document) or an INS Form I-766, employment authorization document must be presented. Form I-688B (showing employment authorization) may also be presented after 90 days.