Part I: I-9 Basics

This is a multi-part blog on filling, filing, maintaining and auditing Form I-9, and how companies can avoiding penalties for non-compliance.

Who is an employer? An employer is any entity or a person, an agent of a person or entity, who is acting directly or indirectly. That means a company or an individual is an employer if they employ another person. The employer can be a contractor or sub-contractor; the word employer includes an agent: someone who is acting on behalf of an employer. An employer is one who hires another to work for them. The employee must be physically present in the United States. Overseas employees are not subject to I-9 rules and regulations. An employee must be paid wages or other remuneration in the United States.

Employers are also entities or individuals who recruit agricultural workers and who accept a fee for recruiting workers. Independent contractors are employers, if they contract with an individual for labor or other services. But the person or entity using the contract labor is not an employer.

All employers must verify the identity and employment eligibility of every worker hired in the United States after November 6th, 1986.

Employers are charged with not ‘knowingly’ hiring ineligible workers. ‘Knowingly’ could include constructive knowledge, knowledge attributable by inference to the employer by facts and circumstances that exist around the hiring of the employee. It is facts and circumstances an employer should have known.

All US employers must fill out I-9 forms and retain it at their offices, either in electronic or paper form. Form I-9 is not filed with the US Immigration and Citizenship Service (USCIS) or with US Immigration and Enforcement (ICE). There is no filing fee.

An employer uses E-verify to compare the information on Form I-9 provided by the employee against government records to verify the employee is eligible to work in the United States.

Forms I-9 are records of every employee hired after November 6, 1986. Employers are required to maintain these records in order to prevent illegal workers from working for a US employer in the United States; and to promote national security, critical infrastructure, prevent abuse and exploitation of workers. ICE targets employers who violate employment laws; hire illegal workers; and do not maintain employee I-9 records, which conform to US immigration laws and regulations.

Both ICE and USCIS are part of the Department of Homeland Security (DHS). ICE is tasked with enforcing proper maintenance and usage of the I-9 by employers and prosecutes erring employers.

Next week : Read Part II:  Which employers collect Form I-9

Part III: How to fill Section 1 of Form I-9

Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Copyright 2011. All rights reserved.

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