U.S. Citizenship and Immigration Services (USCIS) released an updated version of Form I-9 on January 31, 2020. TiM is now busy implementing the changes into our systems - there is nothing for production or crewmembers to do. But in the meantime, read up on this fun and popular government form below.
Form I-9. You’ve filled it out umpteen times, you know it has something to with starting a new gig, but what’s the full story – and why is it a special challenge for film and TV production?
What the I-9 is actually for (and how it relates to production)
Let’s start with the basics. A requirement of the Immigration Reform and Control Act of 1986, Form I-9 (known informally to its friends as just “the I-9”) is an employment requirement for anyone working in the United States, with very few exceptions.
Citizen or non-citizen, crew or cast, production assistant or executive producer, this form is necessary to verify two things:
- Your identity; and
- Your eligibility to work in the U.S.
In some ways, the I-9 can feel like more of a process than just a plain old form. There are four key steps in this “process”:
- Employee (in this case, crew or cast member) attests to their authorization for employment in the U.S. (i.e., a U.S. Citizen, a U.S. non-citizen national, a lawful permanent resident, or a non-citizen/national authorized to work)
- Crew employee must provide acceptable documentation evidencing their identity and authorization.
- Employer (production company) reviews and confirms the authenticity of the provided documents and records this information.
- Production company employer must keep the I-9 on file for a designated period, and it must be available for inspection by an authorized government officer.
Easy, right? There is also an extensive list of acceptable documents for establishing identity and eligibility to work in the U.S.
Which documents qualify for production crew I-9s?
Employees (in this case, production crew workers) who can present any of the documents on the below List A are only required to provide the one document, as it establishes both identity and employment eligibility.
Any provided documents must be unexpired, natch.
- U.S. Passport or Passport Card
- A Permanent Resident Card (often called a "green card") or Alien Registration Receipt Card with photograph
- Employment Authorization Document Card
- Temporary Resident Card
- Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record, and containing an endorsement to work
- Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A
- Foreign passport containing a Form I-551 stamp or Form I-551 printed notation
Alternatively, if none of the above are available, crew members can provide two documents: one from List B and one from List C, below.
- Driver's license or identification card issued by a U.S. or any of its outlying territories provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address
- Federal or state ID card provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address
- School ID card with photograph
- S. Military Card ID card or draft record
- Military dependent’s ID card
- Voter Registration Card
- S. Coast Guard Merchant Mariner Document card
- Native American tribal document
- Driver's license issued by a Canadian government authority
- School record or report card
- Clinic, doctor or hospital record or
- Daycare or nursery school record
- A U.S. Social Security card issued by the Social Security Administration, unless it indicates one of the following:
- A birth certificate issued by the U.S. Department of State (Form FS-545)
- Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
- Native American tribal document
- S. Citizen ID Card (Form I-197)
- Identification Card for Use of Resident Citizen in the United States (Form I-179)
- Employment authorization document issued by the Department of Homeland Security
Who is exempt from the I-9?
The above applies to the vast majority of those working in the U.S., but as with anything, these rules are not black and white. Remember those exceptions we mentioned earlier? They include:
- Those hired on or before our little I-9 origin story (November 6, 1986) who are continuing in their employment and have a reasonable expectation of continuous employment. (So basically, your key grip who started on the first episode of “ALF” and is still working on the show to this day… wait, it’s canceled??) Also excepted are individuals hired for employment in the Commonwealth of the Northern Mariana Islands (CNMI) on or before November 27, 2009. You know, all of those.
- Independent contractors or individuals providing labor if they are employed by a contractor providing contract services.
- Individuals not physically working in the U.S.
As you can see, not many of these situations apply to your typical U.S. production crew.
What about independent contractors on production?
If you’re thinking, “But I only hire independent contractors for my production crews,” consider that your crew members probably don’t truly qualify as independent contractors. In fact, every employment test we’ve seen comes up with TV and film crew members qualifying as employees rather than contractors. For California production, this was codified into very specific law with the AB5 bill which went into effect January 1.
Even though they may work short term, production crew members are almost always still considered fulltime employees, and as such must go through the I-9 process.
Note: It is partly because of the I-9 and its underpinnings that the government wants to make sure film crew workers are properly classified as employees. If everyone is a contractor, the government cannot easily verify identity and work eligibility in the United States.
What do the various sections of the I-9 mean for production?
The I-9 has three sections, two of which always apply, while the third is only necessary under certain circumstances. Here’s a brief overview of what to expect in each section.
SECTION 1: For Employees (Crew Members) – Information and Assentation
Section 1 of the I-9 is where your crew member employee will provide basic information such as name, address, Social Security Number, contact information, and citizenship information along with their signature and the date. This must be completed by the end of the crew or cast member’s first day on the job.
Once submitted, the production employer must review the form to confirm that it is completed and correct.
SECTION 2: For Employers (Productions) – Document Verification
The production company / employer must complete their portion of the I-9, in Section 2, within three days of the employee’s date of hire. In Section 2, the crew employee’s only responsibility is to provide the aforementioned document(s). The employer or authorized representative must physically examine the provided documents. This can be especially tough when working on a production site; we’ll get in to that in a bit.
Production is also responsible for entering information related to the ID document into the form, along with date of employment, business information, the date the form was completed, and their authorized signature indicating that they’ve reviewed the provided documents.
SECTION 3: For Employers – Reverification and Rehires
An employer is required to complete section 3 when
- an employee’s documentation has expired
- an employee is rehired within 3 years of the original I-9 submission date, or
- the employee has a legal name change (note the employer must also update the top portion, First Name, Last Name and Middle Initial, in Section 2).
This does not apply to U.S. citizens and noncitizen nationals, Lawful permanent residents who presented a Form I-551, Permanent Resident, or Alien Registration Receipt card for Section 2. This includes conditional residents, or employees who have provided List B documents. It is important that the production employer give notice of upcoming reverification in order to give the crew employee ample opportunity to provide updated List A or List C Documents.
For the production company and and crew/cast member, if all the above has been completed, you’ve officially tamed the reasonable beast that is the I-9. Congratulations on making it this far!
Now let’s briefly discuss your I-9 and production. This is what you came for!
I-9s on production – why such a hassle?
We all know working in production, whether in the office or on set, is a touch different from most regular nine-to-five gigs, especially when it comes to the I-9. In a typical office job, once hired, you sit at a desk across from your HR rep, watch a fun new-hire video from the ‘80s, fill out your portion of the I-9, and hand over your documentation for review. Easy peasy.
On production, simply handing over you I-9 to an “employer authorized rep” can be a challenge. Sometimes an authorized rep isn’t on set; other times employees are hired from different states and there’s no official Production Manager, 2nd AD or Production P.A. on hand to sight their ID.
Knowing this, it may shock you to learn that productions can, and sometimes do, find slippery ways around the old “must physically examine documentation” rule. Such workarounds as “Text me the info from your documents” or “Send a Picture of your ID” may get the process done more quickly and easily; they are not, however, well…legal.
The juice isn’t worth the squeeze when it comes to faking out ol' Uncle Sam
Frankly, fudging this stuff is not something you or your production company want to mess with. No paperwork P.A. wants to find themselves on the wrong end of an audit, attesting to having seen photo IDs that turn out not to exist in real life. (Trust us, it happens.)
There are some simple and expedient ways to avoid skating the legality line on this important step in completing the I-9 on production. As we’ve seen, the production company employer has the responsibility of completing Section 2 of the I-9, as well as physically reviewing the approved document(s) provided. What might not be as well known is that a production can deputize (“deputize?” FUN!) any representative of their company, and even authorize crew members to review each other’s documents.
There’s one caveat here: per the rules, an individual cannot review their own documents. Also, the person reviewing the documents must also complete Section 2 of the form… essentially, it’s all or nothing. Though the production can deputize (we can’t get enough of this word) any individual to complete Section 2, the production company as employer is still liable for any subsequent issues that come up around it.
I-9 Inspections and Production Company Violations
All I-9s must be available for inspection by an authorized government officer. The production company employer must keep the I-9’s for all current crew employees on file. For those crew members no longer employed, the production entity must retain the completed forms for a period of three years after the hire date, or one year after the crew member is no longer employed, whichever is longer.
The inspection process is contingent upon whether or not violations are detected. In an ideal scenario, the production company will receive a Notice of Inspection, the I-9 forms will be inspected, no violations will be found and the production company will receive a Notice of Inspection Results (also known as a Compliance Letter) notifying the company that they have been determined to be in compliance.
Notices no production wants to get after an I-9 inspection
If, when the production’s I-9s are inspected, there is either a Notice of Suspect Documents or Notice of Discrepancies, the process is a bit more drawn out, and the production company employer could be subject to fines. There are two types of violations: Substantive violations and Technical Violations.
If it is determined that the production is in violation of I-9 regulations, there are a few different types of notices the production company could receive.
- Notice of Suspect Documents – You get this pup when, after reviewing the form I-9, ICE (Immigration and Customs Enforcement) determines that the employee is not eligible to work in the U.S., and that employment should be terminated immediately for the production company to avoid facing criminal and civil penalties. ICE will give the prodco and crew member additional time to provide appropriate documentation if they believe this finding is incorrect.
- Notice of Discrepancies – This beaut gets fired off if ICE is unable to confirm the legitimacy of the provided documentation, and therefore the crew member’s eligibility to work in the U.S. The production company must pass the notice along to the crew member, who must then provide alternate documentation to attest to their eligibility.
- Notice of Technical or Procedural Violations – When there is a Technical or Procedural Violation (i.e. form is filled out incorrectly, or missing information), the employer is given 10 business days to correct the identified violations. If the production does not correct within this allotted time, these will become Substantive Violations, which in short means that there is now a new charge to the violation for non-compliance.
- Warning Notice – A warning notice will be issued when ICE determines that the circumstances do not call for monetary penalties, but the employer is expected take steps to be in compliance in regard to the violation.
- Notice of Intent to Fine (NIF) – A production company employer will receive a NIF if it is determined that they’ve knowingly hired and maintained employment of crew members who do not meet employment eligibility requirements, or if they have uncorrected technical or substantive violations.
Once a production’s I-9 violations have reached the level of NIF, the production company can choose to either settle or request a hearing. If the prodco fails to respond entirely, the matter is escalated, and they will be issued something called a Final Order. This can result in a Notice of hearing before an Administrative Law Judge – yuck. Production company must then address the complaint and potential consequences spelled out in the Notice of hearing.
There are two types of penalties from which an agent or auditor will determine the fine amount, if it has been determined to fine the production company employer:
Penalties for Knowing Hire/Continuing to Employ, and for Substantive/Uncorrected Technical Violations.
For Knowing Hire/Continuing to Employ, the production company is first called to discontinue unlawful activity. From here, the fine is determined based on the number of violations divided by the number of crew employees that meet this violation.
Also considered is the Tier status of the violator/employer (i.e. first-time violator, second time violator, third + time violator). Fines for first tier can reach up to $4,586, while second tier is $11,463, and third can reach up to $22,972. Fining for substantive and uncorrected technical violation penalties undergoes the same determination process; however, the fines are a bit less steep, all tiers maxing at $2,292.
Working in production can be a whirlwind. It can take a little extra time to meet the demands of even the smallest, seemingly insignificant details. However taxing, it is important to make sure corners aren’t cut, at least when it comes to the I-9 beastie!
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