What Every Employer Needs to Know About the Form I-9

What Every Employer Needs to Know About the People You Hire

The immigration debate is a hot topic. Arizona recently passed controversial legislation causing an outcry from both sides of the debate. Racial profiling, unlawful search and seizure and discrimination are just a few of the terms being bantered about. Why should this matter to anyone who doesn’t live in Arizona?

It is hard to argue the current immigration system is not broken and I hope people a lot smarter than me are working on solving the problem. For now, we must live with and work with the system that is in place. A large piece of the illegal immigration puzzle is the Form I-9, Employment Eligibility Verification.

Using the Form I-9, every employer has the responsibility under the law to verify both the identity and work authorization of every person they hire regardless of that person’s citizenship status. This means filling out the I-9 form for every person hired and inspecting ID and work eligibility documents provided by the new employee.

Of course when the original Form I-9 process was developed in 1986, the ability to easily, quickly, and cheaply produce fake documents was not a huge concern. However, in the current environment, technology is readily accessible to produce authentic looking documents in a very few minutes.

How Can an Employer Be Sure About the Work Eligibility of Who They Are Hiring?

The answer is “they can’t be sure” – and the law does not require that they are sure. In fact, there are consequences for employers who refuse to accept documents if they appear to be genuine. There are also penalties for employers who require certain employees to provide more documents than are required by the I-9 process. Anti-discrimination laws protect employees from employers who may treat them differently because they sound or look foreign or have a foreign sounding name.

The government is providing more tools for employers to use to help them avoid hiring mistakes. E-Verify for employers is an electronic verification system run by the Department of Homeland Security in cooperation with the Social Security Administration. It is free to all employers. Using information provided on the Form I-9, the employer can access the E-Verify system and check the work authorization of new hires. Results are returned within a few seconds.

Of course, no system is perfect and E-Verify does not recognize identity theft in about 50% of the cases. If someone has stolen another person’s identity, E-Verify only “knows” that identity is authorized to work – it cannot determine the person sitting in front of you is not that person. For the system to work more perfectly, it would need to maintain a current photo of every person in the U.S. and match that information to the employee. It is doubtful we will see that in the near future.

What Should a Well Intended Employer Do About Employment Elibigility Verification?

Complete the Form I-9 at the time of hire for every new employee.
Be sure the employee completes Section 1 carefully and accurately.
Use the List of Acceptable Documents from the I-9 and carefully inspect the documents provided by the employee. Record the document information accurately and completely in the document lists in Section 2.
Use E-Verify for every new hire.
Treat every person you hire the same, regardless of their name or appearance.

Proper completion and maintenance of the Form I-9 is the best tool currently available to employers to help them hire a legal work force. It isn’t perfect by any stretch of the imagination but it is what we have and it is the law.

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