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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the July/August 1998 issue of the Journal

My partner Tom Williams is the current chair of the International Law Section of the State Bar of Michigan and specializes in immigration law. He is the author of this month's column.

Question: Is it true that I must complete and keep on file a form for each of my employees to verify eligibility for employment in the United States?

Answer: Yes. A dentist with even one employee is subject to the requirements of the Immigration Reform and Control Act (IRCA) in effect since Nov. 6, 1986. IRCA imposes obligations on all employers to verify the employment eligibility of all new hires, to complete and maintain I-9 forms for each employee, and to terminate the employment of any person unable to verify his or her eligibility to work in the United States. Form I-9 is available from the MDA by contacting Grace DeShaw-Wilner, CAE, assistant executive director, at extension 413.

Each new employee must present the employer with original documents to establish both identity and employment eligibility within three business days of the date of hire. Form I-9 contains three lists of documents. List A documents establish both identity and employment eligibility. List B documents establish identity only, and List C documents establish employment eligibility only. The employee must therefore present at least one List A document or one each from List B and List C.

Once original documents are presented they must be accepted by the employer if they appear reasonably genuine on their face and relate to the person presenting them. It is unlawful for an employer to specify which documents an employee must present.

If an employee is unable to present a required document within three business days of the start of his employment, the employee may present a receipt showing that he has applied for the document. The employee must have indicated that he is already eligible to be employed in the United States by checking the appropriate box in Section 1. The employee must then present the actual document within 90 days of the date that employment begins. Once documents are presented, the employer must examine the documents and complete and sign Part Two of Form I-9. The employer must record the title of the document, issuing authority, document number, expiration date if applicable, and the date employment began.

If the document presented contains an expiration date, the employer is responsible for re-verifying continued employment authorization. This is done by completing Section Three on Form I-9. Employees who have temporary work authorization should apply for a new work authorization at least 90 days before the expiration date. If the Immigration and Naturalization Service (INS) fails to adjudicate the application for employment authorization within 90 days, the employee is authorized for employment for a period not to exceed 240 days.

Employers are permitted to photocopy the employee's documents, but they must do so consistently for all employees. Employers must keep the I-9 form for three years from the hire date, or one year following the employee's termination date, whichever is later. I-9 forms should not be kept in personnel records, but in a separate file.

It is wise for a dentist or dental clinic to implement a policy of periodic internal audits of their employment verification procedures. This allows the employer to identify and correct mistakes prior to an audit by the INS or the Department of Labor. Employers can be subject to substantial civil monetary penalties for failure to comply with I-9 requirements.

Failure to properly complete I-9's will subject the employer to paperwork violations even if the employee is fully authorized to work. Failure to properly complete, retain and/or make I-9's available for inspection to the INS or the Department of Labor may result in civil monetary penalties of $100 to $1,000 per violation. Employers who knowingly employ unauthorized aliens face progressive mandatory penalties, ranging from $250 to $2,000 for the first violation and up to $10,000 for a third violation. Employers who make a practice of hiring unauthorized aliens may be criminally prosecuted.

On Feb. 2, 1998, the INS published a proposed rule in the Federal Register simplifying Form I-9 and reducing to 13 the number of documents which employers may accept when verifying employment eligibility of new hires. A new Form I-9 will be published when the regulation becomes final later this year.

Although many dentists with few employees may not be fully aware of their obligations to complete and retain I-9 forms, the obligation nonetheless does exist, and penalties for noncompliance may be severe.

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