A builder is required to navigate many complex areas of the law while conducting its business. Unfortunately, if the builder fails to properly comply, the penalties can be harsh. For example, in the employment law area, Texas requires an employer to obtain and provide certain information to a new employee. Some of the required new employee information includes completion of a Form I-9, Form W-4, and Consent to Background Check, if the employer is conducting one, and providing a Notice of Workers Compensation Coverage. Of these, some consider the Form I-9 to be the most complicated, and it has recently been revised.
A Form I-9 is used by an employer to verify the identity and employment authorization of individuals hired for employment. All U.S. employers must properly complete a Form I-9 for everyone they hire for employment in the United States; this includes citizens and noncitizens.
On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. Employees may choose to present a List A document (evidence of identity and employment eligibility) or a combination of documents from List B (evidence of identity) and List C (evidence of employment eligibility).
The employer must examine the employment eligibility and identity document to determine whether the document reasonably appears to be genuine and to relate to the employee and record the document information on the Form I-9. Alternatively, employers with many employees can sign up for the E-Verify system and use it to check on the eligibility of new employees. The system uses the information on Form I-9 to compare with federal databases.
Builders should not have an existing employee complete a new Form I-9 for an existing employee just because a new form version has been published. Doing so could be construed as an unfair documentary practice. Also, a builder cannot specify which documents the employee may present to establish employment authorization. The employer must allow the employee to choose from the List of Acceptable Documents.
Employers must retain Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later. You must keep this form in the employee’s record, but you do not need to file or send it to anyone. If a government official asks to inspect your employee documents, the form is your proof that you verified the employee’s work eligibility.
The latest version of Form I-9 Employment Eligibility Verification (Rev. 10/21/2019) issued by the U.S. Citizenship and Immigration Services (USCIS) must be used for any new employee or any required re-verification beginning May 1, 2020. If a builder uses the prior version (Rev. 07/17/2017 N) after April 30, 2020, for a new employee or for re-verification, it may be subject to penalties under the Immigration and Nationality Act.
The main changes to the Form I-9 are in the instructions, which include the following:
- Clarification of who can act as an authorized representative on behalf of an employer.
- Update of USCIS website addresses.
- Clarification of acceptable documents.
- Update of the Department of Homeland Security (DHS) privacy notice.
The revised instructions for the I-9 now clarify that an employer may designate any person as an authorized representative to act on its behalf to complete Section 2. However, the employer is liable for any violations committed by the person designated by the employer in connection with the completion of the Form I-9 or the verification process.
As to acceptable List C documents, the new instructions state that examples of acceptable employment authorization documents issued by the Department of Homeland Security (List C #7) do NOT include the I-766 employment authorization card from the List A documents. Additionally, the new Form I-9 instructions indicate that a List B identity card issued by a federal, state, or local government agency or entity does not include a driver’s license or identity card issued by a State or outlying possession of the United States as described in section B1 of the List of Acceptable Documents.
USCIS updated the DHS Privacy Notice to employees, which is included in the form instructions. The major change to the Privacy Notice is the notification that Form I-9 may be made available for inspection, and that DHS may also share the information on the form, as appropriate, for law enforcement purposes or in the interest of national security.
Texas Construction Law Attorney Joe Tolbert of Brackett & Ellis, P.C. realizes it is difficult for builders to keep up with all the laws, regulations, and legal issues that impact the construction industry. If you have any questions, you can reach our attorneys at 817-338-1700 or by visiting https://ftworthconstruction.lawyer.