Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.
By Michael Phulwani
The US Citizenship and Immigration Services has released an updated edition of the M-274, Handbook for Employ-ers on January 15, 2011, which provided detailed information and instructions for completing Form I-9. Perti-nent parts of this publication are provided below. This is the first part of a series of articles on Form I-9.
Why employers must verify employment authorization and identity of new employees
Employment is often the magnet that attracts individuals to reside in the United States illegally. The purpose of the employer sanctions law is to remove this magnet by requiring employers to hire only individuals who may legally work here: US citizens, noncitizen nationals, lawful permanent residents, and aliens authorized to work. To comply with the law, employers must verify the identity and employment authorization of each person they hire, complete and retain a Form I-9, Employment Eligibility Verification, for each employee, and refrain from discriminating against individuals on the basis of national origin or citizenship. This Handbook provides guidance on how to properly complete Form I-9 and answers frequently asked questions about the law as it relates to Form I-9.
Completing Form I-9
Form I-9 can be downloaded from USCIS Web site at http://www.uscis.gov/files/form/i-9.pdf. The employer must complete Form I-9 each time any person is hired to perform labor or services in the United States in return for wages or other remuneration. Remuneration is anything of value given in exchange for labor or services, including food and lodging. The requirement to complete Form I-9 applies to new employees hired after November 6, 1986.
The employer must ensure that the employee completes Section 1 of Form I-9 by his or her first day of work for pay. Employees may complete Section 1 of Form I-9 at any time between acceptance of a job offer and the first day of work for pay. The employer must review the employee’s document(s) and fully complete Section 2 of Form I-9 within three business days of the first day of work for pay. For example, if the employee begins work on Monday, the employer must complete Section 2 by Thursday.
If the employer hires a person for fewer than three business days, Sections 1 and 2 of Form I-9 must be fully completed by the employee’s first day of work for pay. The employer may not begin the Form I-9 process until the employer offers an individual a job and he or she accepts the offer.
The employer does not complete a Form I-9 for persons who are:
lHired on or before November 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times; (This exception to the requirement does not apply to seasonal employees or employees who change employers within a multi-employer association. Other limitations may also apply.)
lEmployed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
lProviding labor and who are employed by a contractor providing contract services (e.g., employee leasing or temporary agencies); or
lNot physically working on US soil.
Note: The employer cannot contract for the labor of an individual if the employer knows that he or she is not authorized to work in the United States.
Completing Section 1
The employee must complete Section 1 by his or her first day of work for pay by filling in the correct information and signing and dating the form. Ensure that the employee prints the information clearly. If the employee cannot complete Section 1 without assistance or if he or she needs Form I-9 translated, someone may assist him or her. The preparer or translator must read the form to the employee, assist him or her in completing Section 1, and have the employee sign or mark the form in the appropriate place. The preparer or translator must then complete the Preparer and/or Transla-tor Certification block on Form I-9. The employer is responsible for reviewing and ensuring that the employee fully and properly completes Section 1.
Note: Providing a Social Security number on Form I-9 is voluntary for all employees unless the employer is participating in the USCIS E-Verify program, which requires an employee’s Social Security number for employment eligibility verification.
The employer may not ask an employee to provide a specific document with his or her Social Security number on it. To do so may constitute unlawful discrimination.
Completing Section 2
The employee must present to the employer an original document or documents that shows his or her identity and employment authorization within three business days of the date employment begins. Some documents show both identity and employment authorization (List A). Other documents show identity only (List B) or employment authorization only (List C). The employee must be allowed to choose which document(s) he or she wants to present from the Lists of Acceptable Documents.
The employer must examine the original document(s) the employee presents and then fully complete Section 2 of Form I-9. The employer must examine one document from List A, or one from List B and one from List C. The employer must record the title, issuing authority, number, and expiration date (if any) of the document(s); fill in the date employment begins and correct information in the certification block; and sign and date Form I-9. The employer must accept any document(s) from the Lists of Acceptable Documents presented by the individual that reasonably appear on their face to be genuine and to relate to the person presenting them. The employer may not specify which document(s) an em-ployee must present. How-ever, the employer may only accept unexpired documents. If the employer chooses to make copies of documents the employee presents, the employer must do so for all employees, regardless of national origin or citizenship status. The employer must return the original documents to the employee when the employer is finished.
Note: If the employer participates in E-Verify, the employer may only accept List B documents that bear a photograph.
— To be continued…