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Common Questions and Answers Regarding
1-9 Form

 

With the hot topic in the news about Immigration, as a business owner,  the government will be relying heavily on you to play a key part in the workforce community.  I’9’s are the frontline defense to protect you as a business owner should an audit occur.  If you are with an employee leasing company, payroll company or doing your payroll in house, please keep a file with I-9 forms, even if your payroll provider is not asking you for them.  I’ve listed below some of the common questions that you may have and please call us at 941-627-0777 so we can be of further assistance.

 

COMMON QUESTIONS AND ANSWERS REGARDING 1-9 FORM 

Employers and employees can find more Form I-9 information at uscis.gov/i-9-central.


Q. Do citizens and noncitizen nationals of the United States need to complete Form I-9?

A. Yes. While citizens and noncitizen nationals of the United States are automatically eligible for employment, they too must present the required documents and complete a Form I-9. U.S. citizens include persons born in the United States, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands. U.S. noncitizen nationals are persons who owe permanent allegiance to the United States, which include those born in American Samoa, including Swains Island.

Note: Citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) are not noncitizen nationals, however, they are eligible to work in the U.S.

Q. Do I need to complete Form I-9 for independent contractors or their employees?

A. No. For example, if you contract with a construction company to perform renovations on your building, you do not have to complete Form I-9 for that company’s employees. The construction company is responsible for completing Form I-9 for its own employees. However, you may not use a contract, subcontract or exchange to obtain the labor or services of an employee knowing that the employee is unauthorized to work.

Q. May I fire an employee who fails to produce the required documents within three business days of their start date?

A. Yes. You may terminate an employee who fails to produce the required document or documents, or an acceptable receipt for a document, within three business days of the date employment begins.

Q. What happens if I properly complete and retain a Form I-9 and DHS discovers that my employee is not actually authorized to work?

A. You cannot be charged with a verification violation. You will also have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized individual, unless the government can show you had knowledge of the unauthorized status of the employee.

Q. May I specify which documents I will accept for verification?

A. No. The employee may choose which document(s) they want to present from the Lists of Acceptable Documents. You must accept any document (from List A) or combination of documents (one from List B and one from List C) listed on Form I-9 and found in Section 13.0 that reasonably appear on their face to be genuine and to relate to the person presenting them. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision in the INA. Individuals who look and/or sound foreign must not be treated differently in the recruiting, hiring, or verification process. Please see Section 13.0 of this handbook for more information on acceptable documents.

For more information relating to discrimination during the Form I-9 process, contact IER at 1-800-255-8155 (employers) or 1-800-237-2515 (TDD) or visit IER’s website at justice.gov/ier.

Note: An employer participating in E-Verify can only accept a List B document with a photograph.

Q. What is my responsibility concerning the authenticity of document(s) presented to me?

A. You must physically examine the document(s), and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them. However, you must provide the employee with an opportunity to present other documents from the Lists of Acceptable Documents.

Q. May I accept an expired document?

A. No. Expired documents are no longer acceptable for Form I-9. However, you may accept Employment Authorization Documents (Forms I-766) and Permanent Resident Cards (Forms I-551) that appear to be expired on their face, but have been extended by USCIS.
May I accept a photocopy of a document presented by an employee?

A. No. Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate.

Q. When I review an employee’s identity and employment authorization documents, should I make copies of them?

A. If you participate in E-Verify and the employee presents a document used as part of Photo Matching, currently the U.S. passport and passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766), you must retain a photocopy of the document they present. Other documents may be added to Photo Matching in the future. If you do not participate in E-Verify, you are not required to make photocopies of documents. However, if you wish to make photocopies of documents other than those used in E-Verify, you must do so for all employees. Photocopies must not be used for any other purpose. Photocopying documents does not relieve you of your obligation to fully complete Section 2 of Form I-9, nor is it an acceptable substitute for proper completion of Form I-9 in general.

 
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Our firm provides the information in this e-newsletter for general guidance only, and does not constitute the provision of legal advice, tax advice, accounting services, investment advice, or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation. The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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