Happy 2021! It’s the start of a new year and a good time to re-visit your company’s I-9 compliance.
The Immigration Reform and Control Act of 1986 requires that all employers complete a Form I-9 for all employees hired after Nov 6, 1986. The U.S. Department of Homeland Security oversees all immigration and customs efforts through Immigration and Customer Enforcement and the U.S. Citizenship and Immigration Services.
The U.S. Dept. of Labor oversees labor, employment, and wage laws. However, there are also state laws that apply. See:
* U.S. Department of Labor: www.dol.gov
* Texas Workforce Commission: www.twc.state.tx.us
I-9 compliance is required for all W-2 employees, i.e. anyone who receives a paycheck from the employer, but is not required for independent contractors.
I-9 Compliance Process – What’s involved?
Starting the I-9 process must wait until the applicant actually becomes an employee. In other words, unless directly related to the job duties, an employer cannot ask a prospective employee anything other than whether he/she is eligible to work in the U.S. prior to making an offer of employment. Once the offer is accepted, it is time to confirm the new employee’s eligibility to work in the U.S.
Remember, the employee, not the employer, gets to choose which documents are presented to confirm work eligibility. Acceptable documents must be originals from those on List A or a combination of documents from Lists B & C, all of which are found on the reverse side of the Form I-9. If the document presented looks reasonably genuine on its face and relates to the employee (names match, photo looks like employee, etc.), then the document must be accepted. Questionable documents may be rejected, and the employee allowed to present other acceptable documents. However, the employee still gets to choose what documents to present and can be terminated only after the employee is given a reasonable time to provide other acceptable documentation from the A, B, and C lists and is unable to do so.
The employer can – and should – keep copies of these documents and should update any documents that are close to expiration, but must be kept with the employee’s I-9 form and not in the employee’s regular personnel file or in any unsecured location. This is sensitive personal information and must be kept in a secure and segregated location. If kept on the computer, the directory containing these files should be password protected and access limited to those persons with a business need to access them (HR department, not direct supervisor).
Ensley Benitez Law, PC
© Karen Ensley and Brian Beneitez, Ensley, Benitez Law, PC., 2021. All rights reserved. This article is provided for educational reasons exclusively and is not meant to be construed as legal advice. Ensley Benitez Law, PC, will represent you only after being retained and that agreement is made in writing.