The answer to your question is "yes," if he or she was hired after Nov. 6, 1986. Let us explain the I-9 form to you so you have a better understanding of its purpose and what you should be doing with the completed form.
The U.S. Citizenship and Immigration Services (USCIS), formerly known as INS, developed the I-9 form in order to verify each person's eligibility to work—citizens and non-citizens alike. For every employee hired after Nov. 6, 1986, you must comply with the Immigration and Nationality Act by completing an I-9 form with your employee.
This form intimidates many employers because you are actually verifying the employee's right to work in the United States. Even though this wasn't the intent, the verification procedure requires employers to verify the identity and authorized status of every employee. USCIS does not expect employers to be private investigators on whether or not an employee has authentic working papers and documents; however they do expect employers to carefully complete the I-9 form. The employer verifies that it has reviewed the documents submitted by the employee, and that the documents reasonably appear to be genuine and keep the completed I-9 form on file.
If the documents that the employee has chosen to give to you look altered or tampered with in any way, then you do have an obligation to ask the government for more verification that the person's documents are actually their own. Let the government do the investigating—not you. Some examples of what might be considered suspicious would be a license or permanent resident card on which the lamination has been separated and another picture appears to be placed inside, or the birth date on the document states the person should be around 55 years old and that person is actually 20 years old. This type of concern would need to be reported and verified with the USCIS.
What do you do if you are suspicious of a person's documents—do you still hire them? The answer is "yes" because once again you are not the expert. You may hire the applicant, report your concerns to USCIS and then wait to hear back from the federal agency reviewing their records. If at that time you hear back from the government and they confirm that the person listed under that document number does not match the information on the records that you have obtained, then you have an obligation to release that person from your employment. It is very important to wait to hear back from the federal agency investigating your claim because if you decide to act on your own you could be discriminating against a person legally allowed to work in the United States.
When completing the I-9 it is important to not ask for specific pieces of identification. The government lists on the back of the I-9 documents that are acceptable for verification. You simply show the prospective employee the back of the I-9 and explain that they can choose one item from list A or one item from list B and C. There have been cases recently where employers are being accused of discriminating against certain classes of people because they are requesting certain documents, or asking to see more than what is required to verify the person's eligibility to work in the U.S. Try to stay away from this by just pointing out the lists on the back of the I-9 and let the employee decide which documents to show you.
The certification block is often overlooked and is very important. As the employer, you are to complete the certification block on the I-9. You are certifying, under penalty of perjury, that you have examined the document(s) presented and that they appear to be genuine. Be very careful to instruct anyone you employ who has responsibility for completing this document on behalf of the company that they are to examine the original documents and that they are certifying under the penalty of perjury.
Once you have a completed I-9 you need to decide where you will keep the forms. Many employers keep all the completed forms together in one file. This way, if your company is ever audited you have all the forms together for easy retrieval. There is no law against keeping the forms with the employee's personnel file, although you may not want a government official going through your company's personnel files to retrieve all of your I-9s. Also, it is a good idea to conduct a yearly audit to make sure you have an I-9 on every employee hired after Nov. 6, 1986. Government audits are increasing in every state, including Idaho (specifically with construction and landscape companies) and the penalties are increasing. So, it would be wise to follow these procedures closely and review your existing documents and clean up any forms that are completed incorrectly.
This column contains human resource suggestions by a human resource specialist. This information is not intended as professional or legal advice of any kind.
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