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DHS to Fine Employers Who Disregard New I-9 Form

December 17th, 2007 Posted by Amelia

The Department of Homeland Security will begin fining employers who use the outdated Form I-9 after December 26, 2007.

The new I-9 form was introduced on November 7, 2007. The forms are required under the Immigration Reform and Control Act of 1986. That law, for the first time, put the onus on employers to show that every worker hired was legally entitled to work in the U.S. Prior to 1986, although it was illegal to employer undocumented workers, enforcement was left up to a federal agency, the Immigration and Naturalization Service or INS.

Since 2001, the functions of INS have been absorbed by ICE, or Immigrations and Customs Enforcement, and the Department of Homeland Security, or DHS.

Employers were expected to begin using the updated forms for new hires on November 26, 2007. However, there was a 30-day grace period during which the DHS levied no fines against employers who used the old form. That period will officially end on December 26.

Employers who do not use the new form fact significant penalties and may even be charged with hiring illegal workers. Fines can potentially top $200,000 per employee for repeat offenses.

The updated I-9 forms are available from www.laborlawcenter.com.

There is no need for employers to re-certify workers hired before November 26, 2007 using the new form I-9. However, the updated form should be used for all new employees. It should also be used whenever it becomes necessary to recertify an existing employees – when an immigration document expires, for example.

Under the law, employers are required to retain the completed I-9 on file for up to three years. If an employee is terminated after less than 2 years of employment, the I-9 form should remain on file for one year after termination. If any of the supporting documents expire during the 3-year period, the employer must have the employee complete a new form I-9 with current documents. Examples of documents that might expire include a driver’s license or resident alien card. Some other documents, such as a social security card, do not expire.

The law expressly permits employers to copy the I-9 documents and retain those copies. Because those documents include information on an employee’s protected status, including race, citizenship and national origin, employers are urged to retain the I-9 forms and supporting documents together in a single location, separate from personnel files.

The new I-9 form removes some acceptable documents from List A, documents that prove both identity and work eligibility. These items were, for the most part, seldom used and easier to forge than the currently accepted documents. That is partly because some of the old documents did not include photographs. Items that can no longer be used by employers for I-9 purposes include:

Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)

On the newest version of the I-9 form, the following documents are acceptable under List A:

U.S. Passport (expired or unexpired)
Permanent Resident Card or Alien Regiistration Receipt Card (Form I-551)
Unexpired foreign passport with a temporary I-551 stamp
Unexpired Employment Authorization Document with photograph ( Forms I-766, I-688, I-688A or I-688B)

An additional document that is acceptable under List A is an uexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94. However, the Arrival-Departure Record must be in the same name as the passport, contain an endorsement of the alien’s nonimmigrant status, and authorize the alien to work for the employer.

In another change, a U.S. passport may now be accepted under List A, whether it is expired or unexpired.