You’d have to be living under a rock – or like us, perenially plugged in to classic rock on repeat – if you haven’t heard about the Trump Administration’s ramping up immigration-related enforcement actions. While we’re not immigration attorneys (though we can refer you to some absolutely great ones!), what immediately comes to mind is every employer’s obligation to ensure new hires are authorized to work in the United States.
This has been the law for decades, and, consequently, it already should be your practice. Bottom line, you must ensure everyone you hire is authorized to work in the United States.
You do this by properly completing and keeping something called an I-9 form.
If you don’t yet have a compliant routine yet, or if you’ve gotten a little rusty, now’s the time to clean up your process.
The I-9 Form
We’ve talked about I-9 forms before, and today we’re revisiting them again.
An I-9 form is simply a federal government form, much like the W-4 form that’s used for payroll, that a new hire is required to complete. Say you hired Janise Smith this week. A critical part of Janise’s orientation should be recording information from a physical document [we lawyers call this documentary evidence] that she’s authorized to work in the United States. A US passport is one of the easiest and quickest forms of proof. Another one-shot document that suffices is a permanent resident card or an alien registration receipt card.
Sometimes, though, Janise Smith doesn’t have one of this single-form ID documents, so she’s got to bring two different documents with her to prove her eligibility to work. The US Citizenship and Immigration Service list of acceptable documents is a useful reference point.
Completion of the I-9 Form
One important aspect of completing an I-9 form is doing it quickly. The law provides that the form must be completed by the employee on or before her first day of work. The employer, then, has three business days to complete the form, including confirming the documentation is sufficient.
The employee’s section requires basic information including their name, address, Social Security number, email address, telephone number, and date of birth. It also requires the employee to certify that she’s eligible to work in the United States because she’s either (1) a citizen; (2) a noncitizen national; (3) a lawful permanent resident; or (4) a noncitizen with work authorization.
The other part of completing an I-9 form belongs to the employer. That’s you or your HR professional. You’ve got to review, accept, and document the identification that’s presented to you [we recommend also making a photocopy of it]. Then you complete the remainder of the I-9 form, including signing it in a timely and complete manner.
Retention of the I-9 Form
Here’s where organizational systems and your company’s process and practice can really hit it out of the park. Employees’ I-9 forms must be retained for as long as they work for you and for at least three years after their date of hire or one year after the date of termination, whichever is later.
We strongly suggest that I-9 forms are kept separate from individual personnel files. The federal government can visit at any time and request your company’s I-9 forms. This is an audit, and every employer in the United States is subject to audit at the government’s whim.
You don’t necessarily want US Immigration and Customs Enforcement (ICE) to have access to all your company’s personnel records. That’s why it’s wise to keep I-9 forms filed separately in an organized and readily-available manner. If you become subject to an audit and ICE wants to see all current I-9 forms, that’s all you’ll need to produce. This is a far better option than piles of personnel folders, each holding an I-9 form somewhere in it.
Visits, Audits, And Warrants, Oh My
ICE is charged with enforcement responsibilities. And while the full extent of ICE’s authority is beyond this employment law blog, you should know that ICE can visit you and demand I-9 documentation. Typically, however, its agents are required to provide three days’ notice of an intent to audit. If an ICE agent appears without advance notice, you have the right to ask to see the notice.
Sometimes, ICE will appear with a warrant. Depending on the type of warrant, whether judicial (that is, signed by a judge) or administrative, the ICE agent may be entitled to visit non-public areas of your company as well.
This is one of many reasons why it’s important to have a plan if ICE comes knocking at your door. Ensure that you – or those with responsibility for human resources matters – know and feel comfortable with your legal counsel. It’s exceedingly wise to contact your attorney immediately if the government comes knocking.
By the way, that’s true if New York State’s Department of Labor pays a visit as well.
Best Practices
The notion of an ICE audit may seem daunting, but having a thorough plan is the ticket to a cool, calm, and collected approach.
This isn’t brain surgery. But at the same time, certain routine steps are required – and should be followed – if you want to minimize risk for your company.
You should:
- Conduct regular internal audits to be certain I-9s are accurate and complete.
- Train HR or management staff on proper I-9 completion and retention rules.
- Store I-9s separately from HR or personnel files for easy access.
- Work with an employment attorney to ensure compliance and prepare for potential inspections.
Questions?
These can feel like daunting times – and they are. But with some preparation and thought, and a bit of attention to best practices, you’ll be minimizing the risk to your business.
We’re here to help. Contact us anytime at 716.839.9700 or info@coppolalegal.com.
