When it comes to complying with provisions of the Immigration Reform and Control Act (IRCA), you may find yourself forced into two roles seemingly at odds with each other — verifying the employment of every employee while at the same time avoiding discriminatory practices. To help you walk the tightrope, here are nine common IRCA mistakes and solutions to help you avoid them:
Mistake 1: Not requiring employees to complete Form I-9 at all. IRCA regulations require employers to have each new employee complete Form I-9 within his/her first three days of employment. Solution: Develop and maintain a workable I-9 compliance system.
Mistake 2: Not completing Section 1 of the Form I-9 on the first day. Although employees have three days to provide the required eligibility documents, they must complete the entire Section 1 of the Form I-9 on or before the first day of employment. Solution: Make completion of Section 1 of the Form I-9 every new employee’s first action and create a system of accountability to ensure a consistent practice.
Mistake 3: Accepting receipts or copies instead of real, original documents. IRCA regulations require employers to review original documents as part of the I-9 process. Receipts are only acceptable as the replacement of a document granting work authorization if the original was lost, stolen or damaged. If a receipt is presented as a replacement document, the employee has 90 days to provide the original document. Solution: Require original documents and set up a tickler for follow up if there has been a replacement request.
Mistake 4: The employer tells the employee specifically which documents to show. Although it is sometimes tempting, an employer may not suggest which document(s) to bring or limit the list that is available on the Form I-9. Doing so may result in a claim of unfair immigration-related employment practices and fines for each employee hired during the period of time in question. Solution: Do not ask for a specific document; just provide the list on the back of the Form I-9.
Mistake 5: Keeping copies of verification documents for some but not all employees. Keeping only copies of verification documents (i.e., passports, driver’s licenses, Social Security cards) for foreign-born employees or another select group of employees can result in an employee claiming Title VII nationality discrimination or a complaint with the Office of Special Counsel. Solution: Keep copies of verification documents for all employees or for none.
Mistake 6: Throwing away “old” Forms I-9 or making new ones at the wrong time. IRCA regulations require employers to keep Forms I-9 on file for all current employees. Solution: Never destroy Forms I-9 for current employees and keep terminated employees’ Forms I-9 for one year after their last day of employment or three years after hire, whichever is longer.
Mistake 7: Employer does not reverify expiring immigration documents. IRCA requires employers to re-verify each employee’s Form I-9 if he or she checks the fourth box in Section 1 (or third box in older versions of the form) indicating that he or she is an alien that is authorized to work until a given date. Solution: Set up a reminder or tickler system to remind the employer to re-verify when necessary.
Mistake 8: Employer re-verifies the Form I-9 when it is not necessary. Employers should not re-verify when an employee’s List B document expires (driver’s license or lawful permanent resident card). This can result in small fines or accusations of document abuse. Solution: Don’t re-verify any employees who check the first three boxes in Section 1 of Form I-9.
Mistake 9: Employer demands Social Security card. Section 1 of the Form I-9 only asks for the Social Security number (not the actual card) and that box is only required for employers who are registered for the Federal Electronic Verification system (“E-Verify”). Solution: Ask for SSN only.