Are you “I-9” Compliant?

Many churches make the erroneous assumption that churches are exempt from compliance with many employer mandates.  Although churches are generally exempt from some mandates (such as discrimination on the basis of religion), churches are not exempt from all.  If the church has employees, the church MUST be in compliance with federal regulations regarding employment eligibility verification. “Employment Eligibility Verification” is done through a federal form called an “I-9”.  An I-9 can be obtained by clicking HERE.  An exhaustive handbook on I-9 compliance can be obtained by clicking HERE.  

The purpose of the I-9 is to verify that each new employee hired after November 6, 1986 is eligible to work in the United States.  The I-9 is not intended to ensure and does not verify that a new employee is a United States citizen.  The I-9 does not take the place of nor does it satisfy the requirements of Arizona’s “Legal Arizona Worker’s Act” found at Arizona Revised Statutes Section 23-212 through 23-214 that requires that you use e-verify to verify legal status.  Arizona churches must use both the I-9 form and “e-verify”.  Information about e-verify can be obtained by clicking HERE.         

The I-9 must be completed “no later than the time of hire” which is the actual beginning of employment.  If a church did not have new hires fill out an I-9 and make copies of relevant documents at the time of hire, the church should immediately have every employee complete an I-9. 

The I-9 requires the employee to fill out Section 1, the employee’s contact information, date of birth, social security number, etc.  Section 2 requires the employer to review and verify documents that demonstrate the employee’s legal ability to work in the United States.  The employee provides the documents and the employer cannot insist on the employee producing certain documents versus other eligible documents.  For example, an employee can show a U.S. Passport and that is sufficient evidence of ability to work in the U.S.  Alternatively, the employee can produce a driver’s license and a social security account number card.  The employer, however, cannot insist on the employee providing a birth certificate.  In other words, the employee chooses which documents to provide from the lists “A”, “B”, or “C” on page 5 of the I-9 document. 

Employers are required to update and re-verify I-9s in certain situations.  Churches cannot obtain the I-9s and then forget about them.  For example, if an employee’s name has changed, an updated I-9 is required. 

Federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of the I-9.  An employer who hires an unauthorized worker can be fined between $250 and $5,500 per worker.  An employee of an employer who knowingly accepts fraudulent documentation can also be criminally prosecuted under other immigration laws.  An employer who fails to keep proper records that I-9s are properly filed can be fined $110 per missing item for each form, up to $1,100 per form, even if the employee is legally authorized to work in the US. 

Employers are also obligated to make the Form I-9 available for inspection to an officer of the Immigration and Naturalization Service (INS), the Department of Labor (DOL), or the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) upon request but will be given at least 3 days advance notice.  For this reason, employers often keep all of their employee’s I-9s in a separate notebook so that pulling the I-9s from employee files is not necessary. 

Employers are required to retain completed I-9 forms for three years after the date of hire or one year after the date employment ends, whichever is LATER.  There is no harm in keeping I-9 documents indefinitely.  Employers are not required to destroy old I-9s. 

If you have any questions regarding this issue, or other questions related to church law in Arizona, please feel free to contact the author, Scott B. Carpenter, at scott@azchurchlaw.com or 480-991-6949.