Practice Update for Employers: Selecting the Correct I-9 Attestation

From USCIS I-9 and E-Verify, a reminder:

Ensure Employees Choose the Correct Attestation on Form I-9

When reviewing an employee’s completed Form I-9, Employment Eligibility Verification, USCIS recommends that employers closely review the Employee Information and Attestation area in Section 1 for two common mistakes employees make:

  • Falsely attesting to being a “citizen of the United States.” Employees may be subject to imprisonment, fines and even removal from the Unites States for making this false statement.
  • Choosing “noncitizen national of the United States.” Only individuals born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad should choose this attestation.

Employers must always provide the Form I-9 Instructions to employees.  When an employee selects the noncitizen national of the United States attestation box, ensure that the employee has reviewed the definition, item #2 in the Attestation section on page 3 of the Instructions.

Employers are ultimately responsible for the information contained on an employee’s Form I-9, and can be held liable for these attestation errors, which may result in fines and other penalties.  The U.S. Immigration and Customs Enforcement (ICE) agency enforces Form I-9 requirements, and can fine for such errors during an I-9 inspection.

Keep in mind: Employers are not held liable for any erroneous attestations an employee makes in Section 1 of Form I-9, Employment Eligibility Verification. Rather, the employer must ensure that the employee checks only one box to complete Section 1. To ensure employees can complete Section 1 accurately, the employer must provide them with the entire Form I-9, including the Instructions for completing the form.

The employer must not treat individuals differently because of their selected or perceived citizenship, immigration status or national origin.

The employer should never demand that employees select a specific attestation nor should the employer ask for or demand documents for completion of Section 1. Additionally, when completing Section 2 of Form I-9, the employer should never ask or require employees to show specific documents because of their national origin, ethnicity, immigration or citizenship status, race, color, religion, age, gender or disability, or because of any other protected characteristic.

Employees who feel that their employer has violated any anti-discrimination provisionsmay contact the Department of Justice Immigrant and Employee Rights Section (IER), or the Equal Employment Opportunity Commission for assistance or to file a complaint.

To stay up to date on the latest information on the Form I-9, please visit I-9 Central.

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