As the new administration continues to scrutinize immigration laws, employer compliance regarding employee documentation remains paramount. In fact, the United States Citizenship and Immigration Services (USCIS) recently issued a revised employment eligibility verification form. This update serves as a timely reminder that immigration law is evolving and that it’s important to regularly revisit compliance.
Self-Audit Checklist of Compliance Basics
As an employer, you’re obligated to remain in compliance regarding your employees’ legal right to work in the U.S. The following checklist – while by no means comprehensive or a substitute for proper legal counsel – represents a general guideline of your responsibilities.
1. Employment Eligibility Verification Form
Employers are obligated to verify their employees’ eligibility to work in the U.S. by maintaining a Form I-9 for every employee hired after November 6, 1986. As of September 18, 2017, the updated Form I-9 is also required.
2. Timing is Everything
It’s appropriate to provide new employees with I-9 forms at the time you make a job offer or after you've made a job offer, but it’s inappropriate to do so beforehand. If an applicant isn’t offered the job, but you provided them with I-9 forms anyway, questions of discrimination can arise.
3. Day One
Every employee is required to fill out Section 1 of the I-9 on or before their first day of employment (first day of work for pay).
4. The Thursday Rule
As the employer, you’re obligated to complete Section 2 of the I-9 within three days of the employee's first day of employment (first day of work for pay). This is known as the “Thursday rule.”
5. Work Authorization Documents
The I-9 comes equipped with three separate lists that delineate acceptable employee documentation. Your employees must supply you either with one work authorization document from List A or with one document from both List B and List C.
The updated I-9 form’s only substantive change now allows a Consular Report of Birth as List C documentation for U.S. citizens who were born abroad.
6. The Original
You are required to examine your employees’ original work-authorization documents. Photocopies and digital scans are not acceptable. For remote employees, a company representative must perform this task in person. The documents must be valid at the time of hire – with a few exceptions for grace periods and extensions.
Provided that the documents appear to be authentic and to relate to the employee in question, you will not be held strictly liable for documents that are ultimately proven to be false.
7. Complete & Accurate
Both you and your employee must fill out your respective sections of the I-9 completely and accurately. Always double-check to ensure that you’ve adequately addressed every answer field; that your employee signed and dated Section 1; and that you signed, dated, and included the hire date in Section 2.
8. Copy That
It’s a good idea to make and keep copies of your employees’ original documents to serve as records of the original examination. To avoid any appearance of discrimination, however, you must follow the same policy for every employee.
9. Retain & File
By following the simplified retention rule of maintaining I-9 records throughout employment and for three years after termination, you should avoid mistakenly destroying these important documents prematurely. Further, keeping your I-9 documents in separate binders for current and terminated employees – rather than in employee files – will make it less onerous to produce necessary documentation within the allotted three days after the U.S. Immigration and Customs Enforcement (ICE) makes a request.
10. Err on the Side of Caution
When it comes to compliance regarding documenting your employees, it’s best to err on the side of caution. When in doubt, seek experienced legal counsel.
Should you have any questions about how this impacts your business compliance or employees, please do not hesitate to reach out to us at support@bridge.legal.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
