Compensation &; Payroll
I-9s still must be completed from a distance
Q: A new hire will begin working for our organization in another state. In compliance with the Immigration Reform and Control Act (IRCA) of 1986, Form I-9 needs to be fully completed within three business days. Without direct access to the employee, what would be the best method to get the form completed to be in compliance?
A: During the on-boarding process, if a new employee is not in a location where a representative of the organization can complete the form, there are several options available to employers.
Using a notary is an option. The new hire could be provided with the form and required to have it authorized by a notary. IRCA does not require employers to maintain photocopies of the supporting documents. However, the notary would have to attest to the fact that the documents reasonably appeared on their face to be genuine and related to the person presenting them to support their eligibility to work in the United States.
A good business practice, in this instance, would be to have the employee photocopy the supporting documents and submit them with Form I-9. Another option would be to complete the Form I-9 during the final interview stages, have the potential candidate complete the form and provide supporting documents while on-site.
There is no minimum or maximum period before the start date to complete Form I-9. However, employers should be careful to ensure that when securing the information prior to the start date that the information is not used in a potentially discriminatory manner.
Lastly, your organization could partner with a staffing agency and use its services to complete the form. In using either of the options mentioned, the employer is still held liable for the accuracy of the complete form and knowingly hiring aliens not authorized to work in the United States.
Additionally, if an employee is recruited or referred for a fee, who is liable for completing Form I-9? Is the recruiter or referrer for a fee liable or the employer for which the employee will work?
When an employee is recruited or referred for a fee, the employer is ultimately held liable for compliance. However, it is unlawful for a recruiter or referrer for a fee to recruit or refer an individual without complying with the employment eligibility verification requirements. Recruiters and referrers for a fee must complete Form I-9 when a person they refer is hired. The form should be completed within three business days of the date employment begins. If the individual works less than three days, the form should be completed at the time employment begins.
Recruiters and referrers for a fee can designate agents to complete Form I-9. The above-mentioned options would satisfy the requirements. Hence, the agent would in turn provide the recruiter or referrer for a fee a photocopy of Form I-9. Recruiters and referrers for a fee are still responsible for compliance with IRCA and may be held liable for any applicable violations. The retention period and advance notice inspection provisions are the same as those for employers under IRCA.
Article by Dyane Holt, SPHR, is an information specialist for SHRM's Information Center from http://www.shrm.org/kc/solutions/articles/archives/CMS_018258.asp#P-8_0