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May 7, 201308:21 AMForward HR

with Diane Hamilton and Nilesh Patel

Starting May 7, a new form required for all employers

(page 1 of 2)

Under the Immigration Reform and Control Act of 1986, employers have to document an employee’s identity and ability to work lawfully in the United States. As of May 7, employers will have to start using an updated version of the employment verification form, commonly referred to as Form I-9. The new version of the form must be used for all new hires, rehires, and employment authorization reverifications occurring on or after May 7.

The form

The new form can be downloaded from the U.S Citizenship and Immigration Services website. Ensure that you have the correct form by looking for “03/08/13 N” in the lower left-hand corner.

Employees and employers have the responsibility for filling out the form. However, employers bear a greater burden in that they have to complete the form in a timely manner, inspect an employee’s documents, and maintain records.

Employees must fill out Section 1 of the form after they receive the job offer and no later than the first day of employment. The form asks for the employee’s full legal name and “other names used.” The form’s instructions clarify that employees should list “N/A” if they have not had any other legal names. The form also asks for an employee’s Social Security number, which is optional unless the employer is participating in the E-Verify system. Employees must sign at the bottom of Section 1. The signature is their declaration, under penalty of perjury, that they have listed an accurate immigration status and have not made any false statements or used any false documentation to complete the form.

The form looks deceptively simple and employers have to be very careful when filling it out. Employers must complete Section 2 of the form after the employee completes Section 1 and must do so within three business days of the employee’s start date. It is the employer’s responsibility to examine documents showing the employee’s identity and employment authorization.

The form contains instructions and three lists of acceptable documents that employees can provide. Those instructions and lists must be available to all employees. In addition, employers must verify that the documents presented by the employee appear genuine. List A documents establish both identity and employment authorization, List B documents establish only identity, and List C documents establish only employment authorization.

Employers should remember the following to avoid exposure to common discrimination charges:

  1. Employees get to decide which documents they want to present.
  2. Do not refuse to hire an individual simply because of a future expiration date on the document. If an employee presents a listed document and it has not expired, accept it.
  3. Do not be overzealous or single out any nationality or racial group when verifying the authenticity of an employee’s documents. Employer representatives are not expected to be document experts. A document that appears genuine and is unexpired should be enough to fulfill the employer’s responsibility. If an employer has information that casts doubt on a document’s authenticity, it would be best to review the legal implications prior to taking any action.
  4. Do not make photocopies of some employees’ supporting documentation and not others. Treat all employees the same way; photocopy all documents or none of them.

There are several other instances when employers should check their legal obligations. For example, an employee may not be able to produce the relevant document(s) when completing Form I-9. This raises the question of whether to terminate the employee immediately or whether the employee can have more time to gather the proper documentation. Additionally, an employment authorization document may expire while the employee is still working for the organization. This may trigger the reverification requirements in Section 3 of the form or result in employment being terminated.

(Continued)

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About This Blog

 Diane Hamilton, PCC, SPHR, is the owner and founder of Calibra, a coaching and consulting firm focused on maximizing leadership potential. Nilesh Patel is the principal attorney of the Mahadev Law Group, LLC, which focuses on human resources and employment law issues for organizations. He can be reached at npp@mahalawgroup.com. Both bloggers are members of Wisconsin SHRM, which is dedicated to being the state leader in HR management and the premier source for HR expertise and resources. More information can be found at www.wishrm.org. You can follow the WI SHRM blog at http://wishrm.wordpress.com.

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