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IMMIGRATION LAW     


2343 MASSACHUSETTS AVENUE
CAMBRIDGE, MASSACHUSETTS 02140-1294
TEL:617.498.0900
FAX:617.876.0082

ALAN M. PAMPANIN
   
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I-9 Memorandum
 
This is designed to be a workable outline to assist employers identify the key I-9 issues when hiring anyone. It is an outline only. Questions arising in the course of an interview may need to be resolved through legal counsel.
 
The I-9 must be completed for every person hired.

Not necessary for Independent Contractors. Who is an IC is not always clear. A rule of thumb is the degree of control the employer exercises over the new hire, whether the person is a 1099 as opposed to a W-2 employee in the eyes of the IRS. The 1099 approach must be moderated with the degree of control measure. Under some circumstances a 1099 employee will still be subject to I-9 requirements.

Not necessary for casual domestic work in a private home on sporadic, intermittent basis.

 
The employee must complete the I-9, Section 1 at the time of hire.

"Hiring" is to be interpreted as when the actual employment begins , not when contract signed. The employee must submit the necessary documentation to prove employment eligibility within 3 business days of the date employment begins. For part time work the third day of hire is the third day they work.

 
The employer must complete the I-9, Section 2, within three business days of the hire.
 
Documentation.

The individual must present documentation to prove identity and employment eligibility. Some documents prove both identity and employment eligibility. Some prove one but not the other. INS has recently (Oct/Nov 2001) revised the acceptable documents for I-9 purposes. The acceptable list of documents follow.

List A Documents - Documents proving both identity and employment eligibility

If one of these documents is provided, this is the only document needed.
1. U.S. Passport
2. Unexpired foreign passport with I-551 stamp or attached INS From I-94 indicating unexpired employment authorization;
3. Alien Registration Card (INS Form I-551), otherwise known as 'the green card'. Note that Form I-151 is no longer acceptable, please see List A, #5
4. Unexpired Temporary Card (Form I-688)
5. Unexpired Employment Authorization Card (Form I-688A)
6. Form I-766 Employment Authorization Document.

The following documents have been removed from List A:
Certificate of U.S. Citizenship (List A #2)
Certificate of Naturalization (List A #3)
Unexpired ReEntry Permit (List A #8)
Unexpired Refugee Travel Document (List A #9)

 
List B Documents - Documents proving identity only.

1. Driver' license or ID card provided photograph, name, date of birth, sex, etc.
2. ID card issued by state, federal, government agency provided photograph, name, date of birth, sex, etc.
3. School ID with photo
4. Voter's registration card
5. U.S. military or draft card
6. Military dependent's ID card
7. U.S. Coast Guard Merchant Mariner Card
8. Native American tribal document
9. Driver's license issued by Canadian government authority
 
If under age of 18 and unable to present one of above:
10. School record or report card
11. Clinic, doctor, hospital record
12. Day-care or nursery school record

 
List C Documents - Documents proving employment eligibility only

1. U.S. Social Security Card (other than one stating not valid for employment)
2. Certification of Birth Abroad issued by DOS
3. Original or certified copy of birth certificate
4. Native American tribal document
5. U.S. Citizen ID card (INS Form I-197)
6. ID Card for use of Resident Citizen in the U.S. (INS Form I-179)
7. Unexpired employment authorization document issued by the INS (other than type listed in List A - see #5 and #6 above)

 
Remarks regarding Documents

A Document from List A is sufficient to establish both identity and employment eligibility. If not presented with a List A document, must collect List B and List C documents.
A Social Security Card that restricts employment i.e. "not valid for employment" is not acceptable to prove employment eligibility.
The old green card, Form I-151 became invalid on March 20, 1996. Any I-151 submitted after this date is unacceptable.

 
Receipts instead of the document

If the individual presents a receipt for an application for a replacement document for one of the required documents on one of the Lists, the employer must accept that receipt in lieu of the document but the employee must present the actual document within 90 days of the hire.

 
Original documents must be submitted by the individual. Copies are not sufficient. The employer may keep a copy of the document(s) to keep with the I-9. We advise doing so.
 
The employer cannot require or request any other documentation apart from those on the Lists.

The employer cannot require specific documents from the Lists. The employer must accept the documents offered if appear valid on their face.

The employer must accept documents which appear on their face to be reasonably genuine.

 
Completing the form for those with employment authorization 'incident to status': visas such as H-1B , L-1 , E-1 , E-2 , O visas , P visas. Employee completes Part 1; Employer designates anywhere at Part 2 the appropriate visa and attaches a copy of the Approval Notice, Form I-797.
 
Employer must follow consistent procedures in completing I-9.
 
Retention of the I-9 Form. The employer must keep the form for three years after the date of hire or one year after termination of employment whichever is later. Put another way: keep the I-9 for the duration of employment plus one year or for a minimum of 3 years from the date of hire whichever is longer.
 
Rehiring someone. If an individual has previously worked for the company and an I-9 is still on file, the existing I-9 can be used if the person is hired within three years of the date of execution of the I-9 and the employer updates the I-9 to reflect the date of rehire. The employer can also do a new I-9.
 
Employer cannot refuse to hire a person because employment authorization is temporary.
 
Temporary employment authorization.

The I-9 contains space to set down the date authorization expires. The employer must note the date and assure the employee is eligible to work beyond that date when that date approaches.

The employer must see verification of new authorization or an application for extension of the authorization. Certain categories ( H-1B , L-1 for example) allow an automatic 240 days work authorization upon applying to extend such status. Thus, a receipt filed in a timely fashion, that is, before the current status expires, is valid evidence of work authorization for 240 days.

Persons working pursuant to authorization evidenced by an EAD card must show the renewal of the status. An application to extend is not valid. Thus, no receipt will suffice under such circumstance. The only receipt that will work is a receipt for a replacement document, that is an existing document authorizing employment that had been lost, stolen etc. Applications to renew the EAD card should be filed 90 days before expiration. If the card is not issued, the individual can go to the local INS office on the 91st day to get a card.

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