Employment eligibility verification: The employer’s responsibilities
Posted On: 2-3-2016 | Posted By: Beth Fitzgerald
By federal law, employers have a responsibility to ensure their employees are eligible to work in the United States, and the government provides two tools for doing so: the Form I-9, which all employers are required to complete, and the E-Verify system, which is optional for some employers and required for others.
Employers were first required to complete the Form I-9 for new employees in 1986 as part of an effort by the federal government to control illegal immigration. Since the creation of the Department of Homeland Security (DHS) in 2003, two main agencies are involved maintaining and implementing the use of I-9 and E-Verify: U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE). The Department of Justice also maintains some enforcement responsibility.
Do you know how to use these tools properly? To help you understand your responsibilities, we’ve summarized a bit about each tool below.
All employers are required by DHS to complete a Form I-9 for all new employees of any status – temporary, part-time, or full-time – but not for independent contractors, who are not considered employees. For detailed instructions for completing Form I-9, including a discussion of the identification documents employees should provide, please see our supplemental article to the right.
The current version of the Form I-9 expires on March 31, 2016. In the event that DHS doesn’t issue a new form by that date, continue using the current version until a new one is published or further guidance is issued. To ensure that you are using the current version, look for the expiration date on the upper right-hand corner of the form on the first page, or check the USCIS website.
USCIS published proposed changes to the form in November 2015, and opened a public comment period, which closed on January 25, 2016. A notice will be published in the Federal Register after USCIS reviews comments and makes revisions to the proposed form. The proposed version was created with the intent that it would be completed electronically – drop-down menus, hover fields, and help options are among the new features on the proposed form. However, it is not truly an online form. Employers must still print the completed I-9 to obtain a signature, and then store the forms in paper or electronic form.
One general complaint about the revised form is that it does not communicate with the E-Verify system. The completion of the I-9 and the creation of cases in E-Verify are still two separate transactions for employers.
We will update you when the final I-9 form is released.
E-Verify is an online employment verification tool operated by USCIS. It is a voluntary program for employers, unless otherwise required, such as by state law or federal contract. Employers who participate in E-Verify are not permitted to use it selectively and must submit a case for all newly-hired employees. E-Verify compares the information provided by employees on the Form I-9 to the records of DHS and the Social Security Administration (SSA). In many cases, response by the system is generated almost instantly.
Employers who participate in E-Verify are not allowed to use the system to pre-screen applicants and should only submit verification after the I-9 has been completed, but no later than the third day of employment. The use of the employment verification system does not replace using the Form I-9. Job applicants should be made aware that the employer participates in E-Verify, and they can securely check their own employment eligibility by utilizing E-Verify Self Check. This service was made available to potential job applicants in 2012.
If you have any questions regarding the eligibility of any prospective or current employee to work in the U.S., consult your employment attorney for guidance. The penalties for violating the law could include civil fines, criminal penalties and ineligibility for government contracts.
Click here for a printer-friendly pdf of The basics of completing and retaining an employee’s form I-9.
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