With Meg Whitman’s illegal housekeeper in the news, and rumors that the Candidate for Governor of Nevada also had illegal household help, there is no time like the present to review ones’ responsibility with regard to U.S. immigration law (and that goes for aspiring politicians, high profile individuals, executives, managers, workers, and even the stay-at-home moms, who employ domestic help.)
Pursuant to the Immigration Reform and Control Act of 1986 (“IRCA”), all U.S. employers are required to verify the identity and employment eligibility of individuals hired after November 6, 1986 within three days of their start date by completing Form I-9. This applies to all individuals, U.S. citizens as well as non-citizens
The term “employer” means each and every U.S. employer (including those recruiters and referrers for a fee who are agricultural associations, agricultural employers, or farm labor contractors). So if you don’t think of yourself as Juanita’s boss, it is time to think again!
As the employer, you must ensure that the employee fully completes Section 1 of Form I-9 at the time of hire – when the employee begins work. This requires that the employee provide basic information about to themselves, such as name, address, date of birth, and in addition, attest under penalty of perjury the basis upon which he/she is eligible to work for you.
Thereafter, you must review a document or set of documents, of the employee’s choosing, which confirm the individual’s identity and work eligibility. This information is recorded in Section 2 and you too, must attest under penalty of perjury that the document(s) were viewed in their original form, that they appear to be genuine, and that they relate to the individual. All of this must be done within three business days of the employee’s first day of work or they cannot begin their employment.
In certain circumstances, when an employee’s work authorization is time-limited, the form must be updated and the employment eligibility reverified. The I-9 must be kept on file by the employer for the lifetime of the employment and subsequently, for three years from hire or one year from discharge, which ever date is later. Failure to properly complete and maintain Form I-9 can result in civil penalties for paperwork violations on the form, as well as for the knowing hire/employment of unauthorized workers.
As it relates to domestic workers, the only exceptions to this rule are for persons who are either independent contractors, employees of a contractor providing contract services, or employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis. A once a week cleaning lady, is not considered a “casual domestic” worker.
For true independent contractors, the one’s given a 1099 at the end of the year, you should obtain a written statement from the employee certifying that not only is the individual responsible for paying his/her own taxes but also that he/she is in compliance with the employer sanctions provision of IRCA. For contract employees, you should be certain to include in the written contract that the provider will only send individuals to work at your home who have been vetted through the Form I-9 verification process. For domestic help, whether they live in or live out, and especially those individuals for whom you withhold taxes and file quarterly household employer tax forms, you must have an I-9 on file.
And so, when you return home tonight and realize that you do not have a Form I-9 on file for your housekeeper, even if he/she has been working for you for several years already, immediately complete one. But you must do so without making it appear that it was done at the time of hire (i.e., no back dating of the form)!
Remember, Form I-9 must be completed each and every time a person is hired to perform labor or services in the United States in return for wages or other renumeration. So when Juanita leaves and is replaced by Juan, a new I-9 must be completed.
If you have any questions regarding Form I-9 or any other U.S. immigration law concerns, feel free to contact our firm, Wildes & Weinberg, P.C., either by email to Michael@wildeslaw.com or by telephone at (212) 753-3468.
Michael Wildes is managing partner of Wildes & Weinberg, P.C., www.wildeslaw.com, America’s preeminent immigration law firm serving international and domestic corporate and individual clients with their U.S. immigration needs. The firm has offices in New York City and Englewood, N.J. It has a department dedicated to Form I-9 audits, training and discrimination avoidance. Mr. Wildes is a former Federal Prosecutor and recently completed two terms as the Mayor of Englewood, NJ, where he resides.