labor lawAdivision of labor law center

The Immigration and Nationality Act (INA) of 1986 introduced the I 9 forms. The act provided amnesty for many illegal aliens who had been living and working in the U.S. for years. In addition, it transferred some of the responsibility for ensuring that employees were legally able to work in the U.S., from the Immigration and Naturalization Service, (INS) to the employer. The act includes provisions addressing employment eligibility, employment verification and nondiscrimination. These provisions apply to every employer.

Immigration reform is in the news lately, but employers would be wise to continue to be vigilant about obtaining completed I-9 forms from new employees. Employers who fail to obtain proper documentation from new employees can be fined up to $200,000 per instance.

Most employers have employees complete the I-9 on their first scheduled day of work, before clocking in. The employee must note on the form if they are legally entitled to work in the U.S. They must also provide identification, for the employer to photocopy. Normal forms of identification would be a state-issued photo I.D. or driver’s license, plus a social security card. Immigrants can provide an alien registration card (also called a “green card”) instead.

I-9 forms are to be kept on file for three years. If an employee is fired or quits in less than three years, the form is to be kept at least 1 year after the termination.

Under the law, employers may hire only persons who can legally work in the U.S. This includes citizens and nationals of the U.S. and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I-9).

The INA protects U.S. citizens and aliens authorized to accept employment in the U.S. from discrimination in hiring or discharge based on national origin and citizenship status. The law applies equally to every potential employee, regardless of race, color, country of origin or languages spoken. In particular, employers should not use the INA law and the I-9 form as a way to discriminate against Hispanic or other employees. Nor should the I-9 be used solely for employees for whom English is a second language.

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