GoffWilson Immigration bLAWg

On February 19, 2009, Attorney John Wilson hosted a webinar for the Society for Human Resource Management (SHRM), “You Can’t Afford to Wait: Filling out the I-9,” and discussed the upcoming changes to the I-9 form and the E-Verify requirement.  Our firm received hundreds of questions and we posted PART I on 3.2.09, and the PART II last week. We appreciate the positive feedback have received in response to these postings. This week, we’d like to share ten more excellent, reoccurring questions. We believe that everyone can benefit from reviewing all of the questions and our responses.  Check back soon for more questions.

38.  Q.  We are a government contractor but we also sub-contract.  Are we responsible for our subcontractor’s I-9 compliance?  Do they need to E-Verify as well?

 A.  You are not responsible for your subcontractor’s I-9 compliance.  However, you may be liable if you know or have reason to know that the subcontractors are employing undocumented workers.  You must have more than mere suspicion though.  The subcontractors’ relationships with your company may require them to use E-Verify if they qualify as a subcontractor.  The subcontractors are only required to use E-Verify if you (the federal contractor) contract directly with the government and have a qualifying federal contract, which contains the E-Verify clause.

 

39.  Q.  You mentioned [during the SHRM Webcast] that there are 2 types of I-9 errors, substantive, which cannot be corrected, and procedural, which can be corrected.   Can you please explain the difference between the two?

A.  There are two types of I-9 errors: technical/procedural errors and substantive errors.  Technical/procedural errors can be corrected.  An example of a Technical/Procedural error is forgetting to record a document title.  If a copy of the supporting documentation has been kept, this is correctable without contacting the employee.  The fines for these errors are more discretionary.  A substantive error cannot be corrected, and if audited, your company will likely face a fine for these errors if the statute of limitations has not run.  An example of a substantive error is not signing Section 2.  If audited, your company will be fined for this.

 

40.  Q.  One of my employees presented a Certificate of Naturalization without an expiration date.  Will this still be valid in April?

A.  First, it is not necessary to review I-9 forms for document expiration unless the employee’s employment authorization expires with the documents.  The only time you need to get new or updated documents is when work authorization expires or when a receipt was presented by the employee when the I-9 was originally completed.  An I-9 is valid if an individual presented appropriate documents when they completed their I-9, and if their work authorization does not expire.  Currently, you are required to accept expired List B documents and U.S. Passports for I-9 purposes.  On April 3^rd, 2009, all documents must be valid on the day the I-9 is completed.

 

Second, when the I-9 form was changed on December 26, 2007 the USCIS removed the Certificate of Naturalization from the Lists of Acceptable Documents.  The Certificate of Naturalization is not a valid document for I-9 purposes.  If this individual was hired after December 26, 2007, then you have accepted an unacceptable document.  Please review the Lists of Acceptable Documents before completing any I-9s.  If this individual was hired before 2007 then the Certificate was an acceptable document, and nothing more needs to be done.

 

41.  Q.  We are a staffing firm with subcontracts to a contractor to the Federal government.  How do we know when the E-Verify clause for Federal Contractors goes into effect? 

A.  If you are a qualifying subcontractor (and there are many exceptions) then the company who has the contract will be required to notify you that you will be required to enroll in E-Verify.  You will have 30 days to enroll and 90 days to reverify your current employees assigned to work on the contract.  During that 90 days you may elect to E-Verify your entire workforce, but it is not required.

 

42.  Q.  How long do I have to keep I-9s?

A.  Every current employee hired after November 6, 1986 must have an I-9 on file throughout their employment.  Only once an employee has separated from the company should you calculate a retention date for that I-9.  On the day the employee separates, calculate one year from that date and write it on the I-9.  Next, add three years to the employee’s start date and write that date on the top of the I-9.  Circle the later of the two dates.  This is your retention date. 

 

GoffWilson has developed an I-9 Retention Worksheet to assist employers calculate retention dates for I-9 Forms. Feel to print and share this worksheet.

 

43.  Q.  When I rehire an employee they complete a new I-9.  Should I E-verify them again too?

A.  No.  The E-verify system does not allow you to run an employee twice, even for rehires and reverification.  This may change at a later date.

 

44.  Q.  We are a subcontractor who provides office supplies and furniture to companies who may have government contracts.  Are we required to utilize E-Verify?

A.  Under the current rule, you are not required to use E-Verify; this may change in the future.

 

45.  Q.  Where can I get information about E-Verify?  I am looking for information on the online training, testing, and the 12-page Memorandum of Understanding.

A.  Visit the following links to find information on the E-Verify program and The Memorandum of Understanding

 

46.  Q.  Is it true that companies cannot require new hires to input their Social Security Number on the I-9 form unless they are using E-Verify?  If an employee does not include a Social Security Number and it turns out that they are not legally authorized to work in the United States, is the employer liable?

A.  An employee is not required to include their Social Security Number in Section 1 of the I-9 form unless the employer uses E-Verify.  Since this is not required, the employer is not liable if the employee turns out to be unauthorized for this reason.  However, if the employer has any actual or constructive knowledge that the employee is unauthorized they are not protected from liability. 

Please contact our firm if you have any further compliance questions, or if you feel that your company has violated any I-9 Form or E-Verify regulations.