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I-9 Issues When Hiring Foreign Workers

By William Vogeler, Esq. on January 26, 2017 | Last updated on March 21, 2019

Hang on to your I-9's; you're gonna need them.

If you don't know what Form I-9 is, then perhaps you haven't worked for an American company in a few decades. The U.S. government has required workers and employers to complete I-9's for every new employee since Nov. 6, 1989. It is required when hiring citizens and non-citizens, and all must attest that they are legally in the country.

As you absorb President Trump's orders Wednesday to construct a wall between the United States and Mexico, along with actions to cut back on legal immigration, including keeping Syrian refugees out of the country, now do you remember Form I-9?

Amnesty Is Over

The I-9 form was part of the Immigration Reform and Control Act of 1986, which required employers to attest to their employees' immigration status; made it illegal to hire or recruit illegal immigrants knowingly; and legalized certain illegal immigrants, including seasonal agricultural workers and others who entered the country before January 1, 1982.

The Act did not have a substantial impact on illegal immigration by 2012, but the government progressively changed the form's requirements. The 2016 version is the only form that will be accepted by the government now, effective Jan. 22, 2017.

While Obama brought opportunities for undocumented workers to stay in America, there is a new sheriff in town and the I-9 is one weapon in his holster. Some legal observers believe it signals more I-9 investigations and enforcement actions against employers.

I-9 Requirements

Like a tax form, the I-9 form is short but has lots of instructions. It takes more than twice as long to complete as the original form, and correspondingly has increased the employer's responsibilities.

The duty list includes: examining each document the employee presents and to determine whether it appears genuine; recording the documents on the form; certifying the date of the employee's first day of work; and attesting to the truth of employer's having completed the document as required; maintaining a copy of the record for three years.

In short, the I-9 makes the employer responsible for guarding against illegal immigrants working in America. It includes subtle warnings: "The Form I-9 must be retained by the employer and made available for inspection by U.S. government officials ..." And if the employer copies the employees documents, "Photocopies must be retained and presented with Form I-9 in case of inspection by DHS or other federal government agency."

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