I-9 Tip #4: Understand I-9 Regulations to Prevent Employment Discrimination

by Vanessa Ridden November 7, 2011

So far in this series of tips to avoid common I-9 mistakes, we’ve talked about the timeframe for completing the Form I-9, how long employers should retain I-9 records and when the reverification process should be performed. Next, we’re turning our attention to a topic that is equally as important: discrimination.

Tip #4: Understand the rules regarding employment discrimination.

The I-9 compliance process can be complicated, and it’s important to understand the rules in order to avoid costly fines and to maintain compliance. While it is important to follow the appropriate procedures and to verify employees, many employers make the mistake of being overly cautious to the point of discrimination. It’s important to remember that it is illegal to discriminate against any applicant based on their national origin, race, color, religion, age, sex, disability or genetic information.

An example of employment discrimination may be an employer who chooses to hire only American citizens. Unless U.S. citizenship is required for a specific position by law, regulation, executive order or federal, state or local government contract, jobs must not be limited only to U.S. Citizens.

Also, keeping copies of an employee’s documentation (showing that they are an alien authorized to work in the United States) can be a violation of anti-discrimination laws—unless you maintain the same documentation for all employees. Singling out any one person qualifies as discrimination.

There’s one more blog post coming up in this series, but if you’d like a handy resource including all five tips, feel free to download our complimentary guide today.

Now, we’d like to know: Do you feel that the regulations regarding employment discrimination are easy to understand?

I-9 Tip #3: Don’t Miss Deadlines--Create an I-9 Reverification System

by Blake Forrester November 7, 2011

Third in our series of tips to avoid common I-9 mistakes is some helpful advice about the reverification process. A lot of employers aren’t exactly sure when reverification must be completed, or which employees must be reverified.

Tip #3: Create a Reverification System.

It’s a good idea to establish a system that will remind you to reverify employees whose work authorizations are expiring—this must be done before the expiration date in order to maintain I-9 compliance.

An easy way to do this is to set up a tickler system that is organized by month. Sorting your employee records in this way can help you to stay on top of reverifications and to maintain compliance.

Remember, U.S. citizens and noncitizen nationals don’t ever need reverification. If an employee does require reverification, it must be completed no later than the date that the employee’s employment authorization (or employment authorization document) expires, whichever is sooner.

We’ve got two more blog posts coming up that will highlight common I-9 mistakes, but if you’d like to read all 5 tips now, you can download our free guide.

We’d like your feedback: What kind of system do you use to remind you about the reverification process?

I-9 Tip #2: Retain your I-9 records to avoid costly violations

by Tanya Eislle November 7, 2011

We’re continuing our series about common I-9 mistakes with a tip that focuses on record-keeping—specifically, how long employee I=9 forms should be retained. Managing employee documentation and I-9 forms is an important part of the compliance process, but many employers are confused about how long they should retain employee records and if it’s acceptable to discard records after an employee no longer works for the company.

Tip #2: Retain your I-9 records.

So how long are you required to maintain an employee’s I-9 form? The answer is: you must maintain an employee’s I-9 form either 3 years after the date of hire or one year after the date that employment is terminated—whichever is later.

It sounds simple enough, but failing to maintain records in this way can be a serious violation. According to the U.S. Citizenship and Immigration Services Handbook for Employers:

“If an employer’s action or inaction result in the alteration, loss, or erasure of electronic records, and the employer knew, or reasonably should have known, that the action or inaction could have that effect, the employers is in violation of section 274A(b)(3) of the INA (8 CFR Part 274a.2(g)(2)).”

Many employers simply opt to maintain all employee records on a permanent basis—that approach will work too, but it’s not a practical solution for everyone. Just make it a rule to follow the regulations put forward by the government in order to maintain compliance.

If you don’t want to wait for our next blog posts and would like to read all five of our helpful tips to avoid common I-9 mistakes, feel free to download our complimentary guide now!

We’re curious: Do you keep your employee records only as long as necessary, or do you retain them on a permanent basis?

I-9 Tip #1: Avoid costly violations--complete your I-9 paperwork on time

by Blake Forrester November 2, 2011

There’s no question about it—trying to maintain I-9 compliance and staying up-to-date on new rules and regulations can seem pretty overwhelming. Even the most seasoned staffing professionals will tell you that avoiding I-9 violations requires meticulous management of your hiring and record-keeping processes. So what are the most common I-9 mistakes?

We surveyed a group of prominent attorneys who serve in the fields of immigration and employment and asked that very question. In this post and in our next few blog posts, we’re going to take a look at the 5 most common I-9 mistakes made by employers and provide tips about how to avoid those mistakes. It should make for some interesting and informative reading, so be sure to subscribe if you haven’t already done so.

Tip #1: Follow the three-day rule.

Once you’ve hired an applicant, the Form I-9 must be completed within a specific timeframe. Try to remember the three-day rule when thinking about the I-9 process:

  • Once an applicant has been offered a position, make sure that Section 1 of the I-9 form has been completed by the first day of work.
  • Section 2 of the form must be completed no later than 3 business days after the employee begins working.

And take note: if you’re hiring an employee for a period of fewer than three days, both sections must be completed by the employee’s first day of paid work.

If you don’t want to wait for our next blog entries to read more tips to avoid common I-9 mistakes, check out our free guide—it includes all five potentially costly errors.

And let us know: What kind of system do you have in place to make sure that the Form I-9 is completed on time?

I-9 Compliance…More is Not Better

by Blake Forrester August 3, 2011

In an effort to be thorough and to ensure compliance with governmental regulations, companies are sometimes overzealous. This is of special concern in the case of the Form I-9 Employment Eligibility Verification process.

The need to prove that all of the company's employees are eligible to work in the United States has caused some employers to demand more documentation from non-citizens than is required by law. This is illegal. It can even trigger an unwelcome civil rights lawsuit initiated by the Department of Justice (DOJ).

The requirements placed on companies by The Immigration Reform and Control Act (IRCA) are:

  • To hire only persons authorized to work in the United States.
  • Not to discriminate on the basis of citizenship status or national origin.

In addition, employers are required to "treat all employees the same during the Form I-9 Employment Eligibility Verification process, regardless of their citizenship status," by the Immigration and Nationality Act (INA).

An employer may not:

  • Require more or different documents from noncitizens than from citizens.
  • Ask for documentation prior to employment if the employer suspects the applicant is not a citizen or has a foreign-sounding name.
  • Refuse to accept documentation with a future expiration date.
  • Refuse to allow the employee to choose which of the eligible documents he will provide.
  • Refuse to hire non-citizens except when the position requires citizenship by law.
  • Refuse to accept any documentation allowable by law.
  • Intimidate or retaliate against any employee who alleges discrimination, or who supports another employee's claim of discrimination.
  • Require an employee to present different or more documentation during the re-verification process than during the original eligibility process.

There is an entire section Department of Justice's Civil Rights Division, called the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC"), devoted to enforcing the anti-discrimination provision of the INA. Usually, within seven months after the receipt of a complaint, the OSC completes its investigation.

If the OSC determines that a company has engaged in a pattern or practice of discriminatory acts by requiring additional and unnecessary documentation to verify the work eligibility of noncitizen employees as compared to documentation required/requested of U.S. citizens, it can file a lawsuit against the company in court. In addition to legal penalties, a company found guilty of these practices may be forced to pay the victim(s) various types of relief.

A company's best option is to adhere strictly to the letter of the law and not adopt the attitude that "more is better."

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