Work Eligibility of US Employees: Your Form I-9 Questions Answered

The US Immigration and Customs Enforcement (ICE) office has been very aggressive in imposing fines on employers for Form I-9 violations. As a result, employers that fail to properly verify the identity and work authorization of their new hires with the Form I-9 do so at their peril.

During last week’s XpertHR webinar, Seattle employment attorney Davis Bae discussed the legal requirements and best practices for Form I-9 compliance in order to minimize your organization’s risk. Bae heads the immigration practice at Jackson Lewis offices in the Pacific Northwest.

Below are four key issues Bae addressed during the webinar:

1. Form I-9 Photocopying Policies

Bae says employers that have photocopying policies are potentially retaining evidence of doing a bad job in the event of a government audit.

In general, he notes, an employer is not required to photocopy the documents provided by employees unless it is an E-Verify employer, which would require the employer to photocopy certain documents. However, if an employer decides to maintain a photocopying policy Bae notes that the policy must be applied uniformly; the employer cannot photocopy documents of some employees and not others.

He also advises that while an employer may decide to stop its photocopying policy at any time, a decision to change its policy should be memorialized in its handbook.

2. Expiration of Employment Authorization Documents (EAD)

If an employee has applied for an extension of an employment authorization document (EAD), but does not have the document at the time of reverification, an employer is not required to terminate that employee as long as the decision is consistent with its internal workplace policies.

However, during the time between the expiration of an employee’s EAD and when the employee presents new work authorization documentation, an employer cannot pay the employee for his or her services. In order to reduce the likelihood of this situation occurring, Bae recommends that employers set up a tickler system and alert an employee seven months in advance of the expiration of the EAD so that the employee timely files for his or her work authorization renewal.

3. Rejection of Documents

Employers must accept documents presented by employees to establish their identity and work authorization if they appear reasonable on their face. An employer may reject documents, if upon its review and investigation they do not reasonably appear to be genuine and ask the employee to submit new documentation. However, Bae warns employers against doing this, saying it is better to accept a document rather than reject it because if an employer rejects a document that is valid for Form I-9 it could face a potential discrimination claim.

4. Preparer/Translator

Finally, employers should be careful and not complete any part of Section 1 of the Form I-9 unless the employee requires assistance or translation to fill it out. If an employer assists the employee, it must complete the Preparer/Translator Certification on the form.

To hear Bae’s full remarks, including a series of lively questions from attendees, listen to Compliance Strategies for the Changing Immigration Landscape.

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