Form I-9 Compliance for H1B Employers11 May 2017
Generally speaking, whenever a U.S. company hires a new employee, the employer is required by law to verify the identity and employment authorization of the worker. This is accomplished by completing the I-9 form and having the new hire present one or more acceptable documents. In addition, depending upon the immigration status of the worker, the employer periodically may be required to re-verify that individual’s authorization to work. Failure to comply with the I-9 requirements can lead to severe penalties for employers. The current political climate makes strict compliance with the I-9 rules of paramount importance for all employers, especially those hiring foreign workers.
General Requirements for Completing Form I-9
Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to have each employee complete section 1 of the I-9 at the time of hire. Section 1 contains personal information about the potential worker and an attestation as to that individual’s citizenship / immigration status. The time of hire is noted on the form as the first day of employment. The employee may complete section 1 before the time of hire, but no earlier than acceptance of the job offer. The employer then needs to review the employee-provided documents and fully complete section 2 within three business days of the initiation of employment.
I-9 Retention Requirements
Employers typically must retain I-9 records for either three years from the date worker is hired, or for one beyond the date the employment ends, whichever is later. I-9 records may be retained in any of the following formats: paper, microform, or electronically. The I-9 handbook for employers provides special rules for retention of these documents, depending upon which format is used.
In addition to the actual I-9 form, copies of the documents presented by employees to establish their respective identities and authorization to work can (but do not have to) be retained. If the employer chooses to maintain these documents, this policy should be applied uniformly for all workers. In other words, these records generally should be retained either for all employees or for none. Retention of these records in a non-uniform manner could be viewed as a prohibited form of discrimination under the Immigration and Nationality Act (INA).
Form I-9 When “Porting” to a New H1B Employer
Pursuant to the American Competitiveness in the Twenty First Century Act (AC21), an H1B worker may begin working for a new employer upon the filing of a petition requesting an H1B change of employer. In this scenario, as with virtually all new hires, the new employer must complete I-9 for this new employee. The H1B employee’s form I-94 issued for employment with the previous employer, along with that person’s foreign passport, would qualify as acceptable documentation to verify both identity and work authorization. The new employer should write “AC21” and enter the date the form I-129 was submitted to the U.S. Citizenship and Immigration Services (USCIS) in the “additional information” field on form I-9.
Form I-9 Reverification for H1B Worker Extending Status With Same Employer
If an H1B petition requesting an extension of status is timely filed, the H1B worker is ordinarily permitted to continue working based on the pending petition for up to 240 days beyond the individual’s current I-94 expiration date. In this situation, an employer should write “240-Day Ext.” on the I-9 and enter the date the I-129 petition was submitted to the USCIS. The employer then has to re-verify the employee’s employment authorization once the H1B extension is approved.
This is some basic information regarding the completion and retention of form I-9, as well as a couple of common examples specific to H1B workers. There are, however, many other complicated scenarios related to I-9 compliance that employers may encounter with new hires and/or reverification. Employers should use sound, well-established policies for completing and retaining form I-9 records. Having an experienced attorney audit one’s I-9 records is also strongly recommended.
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