General

The Immigration Reform and Control Act of 1986 (IRCA) requires all U.S. employers to verify the employment eligibility and identity of newly hired employees to ensure that they are in fact eligible to work in the United States.  Employers must have their newly hired employees complete the Eligibility Verification Form (“Form I-9”) to confirm that they are in fact authorized to legally work in the United States.

Employers that are subject to the IRCA

Every U.S. employer must have the Form I-9 on file for each of their employees unless:

• The employee was hired before November 7, 1986, and has been continuously employed by the same employer
• The employment involves domestic services provided on private property that are sporadic, irregular or intermittent
• The work arrangement is a principal-independent contractor relationship rather than an employer-employee arrangement

Maintaining the Form I-9 as a part of the Employer’s Records

All employers must maintain their employees’ Form I-9 documents as a part of the company’s records.  Even if an employee leaves the company or is terminated, the employer must maintain the employee’s Form I-9 in their own files for at least 3 years from the date of hire or one year after the date of termination, whichever period is the longer of the two.

Form I-9 Procedure and Compliance

It’s the employer’s responsibility to ensure that each newly hired employee correctly completes the entire Form I-9.  Employers must review documentation presented by the employee and keep copies of all materials provided by the employee that was disclosed pursuant to Form I-9.

Employees must complete Section 1 of the Form I-9 once they begin employment and Section 2 must be completed by the employer within three days of the employee starting work.

The employer must provide the employee with an official list of acceptable documents the employee may disclose to prove his or her identify and U.S. work authorization. Disclosed documents must be accepted by the employer if the materials appear to be genuine and reasonably related to the employee who presented the disclosures. Requiring documentation that is not required by Form I-9 may constitute unfair employment/hiring practices and be in violation of federal law.

If the documentation provided by the employee does not appear to be authentic, or a misrepresentation, the employer may refuse to accept the disclosures and request further documentation from the list of acceptable documents that meet the eligibility/identity requirements as set out by federal regulations.

An employer should not continue to employ an employee who is unable to present documentation that meets the federal requirements.

Ife S. Ashabo, B.A., J.D., F.L.C

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