Immigration Webinar: I-9 Basics

Ame Coats: My name is Ame Coats.  I’m an immigration attorney with Bashyam Spiro Immigration Law Group in Raleigh, North Carolina.  And I’m here with our managing partner Murali Bashyam.

 Murali Bashyam: Hello Ame.

Ame Coats: We are going to talk today about I-9 forms, and Social Security ”no-match” letters.  This is just going to be an overview of the basic issues in this area that we see and that come up at our practice.  And then if you have more specific questions that we can answer during the time limits of this webinar, you are welcome to e-mail us or contact us afterwards, and we’ll try to address those problems individually.

And this is just an outline of the things that we’re gonna discuss today.  First I’m gonna hit the basics of I-9 forms, which a lot of you who are listening are probably already aware of.  We’re going to talk a little bit about knowledge, actual-verses-constructive knowledge.  This is the thing that gets employers into trouble.  Also, we’re gonna talk a bit about audits and violations of I-9 regulations, and penalties that could be imposed upon an employer.

And we’re going to talk a bit about what we believe employers can do to help themselves be proactive here.  And then, finally, we’re going to hit on the no-match letters.  The I-9 form is the form that employers are required to have completed and keep on file for any employee that they hire.  Now, this does not apply to independent contractors; this is just for employees.

The I-9 form is divided into three sections.  The first section has to be completed by the employee.  However, it’s the employer’s responsibility to see that the employee has completed the first section correctly, meaning have they’ve filled in the proper boxes, have they answered every question.  And it’s also the employer’s responsibility to make sure is this someone who understands the first section.  If they need a translator, then you need to provide one for them and make sure that’s done correctly.  This needs to be completed within the first day of employment.

Sections 2 and 3, those are completed by the employer.  This is where the employer reviews the documents that the employee presents and records certain information about them in Section 2, and then the employer signs off at the bottom in Section 3.  Now, the employer cannot specify which documents that they will consider.  And just remember that there is a chart that shows the different documents that you can look at, but there’s always a few unusual situations.  And if something looks unusual, then you need to look at the instruction manual for the I-9 to make sure it’s covered.

Murali Bashyam: And as far as the documents themselves, as long they reasonably appear on the face to be genuine and related to the individual who presents it, they should be authentic – considered to be authentic.

Ame Coats: That’s right.  The other thing is you have to decide for your company whether or not you’re going to photocopy the documents that are presented, or if you’re not going to keep any photocopies.  But you should do one or the other.

Murali Bashyam: What if an employee shows up and they say, “Well, we’re gonna present a List B or a List A document,” and they say that it’s been stolen or lost or something, and they present a receipt?

Ame Coats: Yeah, and in some circumstances, you can accept a receipt for up to 90 days.  And that’s one of the things that I’ve mentioned: If an employee tries to present a document or a receipt like that, and it doesn’t fall neatly into columns A, B, and C on the document list, then look at the I-9 manual.  Because they have some really good Q&As in the manual that address issues where some unusual documents are presented.

And a lot of you aren’t familiar with these documents either, and so the employee very well may be presenting something that’s completely fine, but because you may not be familiar with the document, it’s just a good idea to check it out.  Make sure that you’re only accepting original documents; you should not be accepting photocopies, and only unexpired documents.  Now, in the past, there were occasions, years ago, where you could accept certain expired documents, but that is no longer the case.

As far as retaining the forms, I did want to mention, again, about the photocopying.  If you want to keep photocopies, keep them for all employees and keep them with the forms.  Retaining your forms; you can have an electronic system for your I-9s and there may be some special guidelines somewhere about this in the I-9 manual; I’m not seeing a whole lot of that, yet, but…

Murali Bashyam: And as far as actually retaining the forms, also, you have to retain them for either three years after the date of hire, or one year after employment is terminated, which is a heck of calculation to make for an employer.

Ame Coats: It is; it’s whichever is later.  Finally, unlawful discrimination does come up in this situation on many occasions.  There are some folks who are just very overzealous with their I-9 practices.  I mean you can’t – if you’re hiring a foreign national, you can’t just for those people, keep copies of their documents, but not keep copies for the U.S. citizens.  Or you can’t scrutinize documents more closely just because someone is from a foreign country.

Murali Bashyam: That’s exactly right.  And as Ame mentioned earlier, you also just cannot ask for specific types of documents based on someone’s nationality because that would be considered discriminatory.

Ame Coats: Well, thanks so much for joining us today.  We really appreciate it.  And, again, just let us know if you have any questions in the future.

Murali Bashyam: Thank you.

Ame Coats: Bye-bye.

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