The basic requirement to
verify work authorization is the Form I-9.
This form is available through the U.S.
Citizenship and Immigration Services. The
back of the form lists the types of documents
that a new hire must provide to verify his or
her identity and that he or she is authorized to
work in the United States.
Employers must fill out
and keep a Form I-9 for every person hired on or
after November 6, 1986.
The I-9 form is designed
to determine who is authorized to work in the
United States. Its purpose is not to determine
who is and who is not a citizen. While all
citizens are authorized to work here, it is not
always easy to recognize who is and is not a
citizen because of the diverse heritage of our
country. Employers must do an I-9 form for
every employee, not just those who appear to be
non-citizens.
No. You need to complete
Form I-9 only for people you actually hire.
For purposes of the I-9 rules, a person is
"hired" when he or she begins to work for you
for wages or other compensation.
The Form I-9 must be
completed within
three business days of the date employment
begins. If the new hire claims that the
necessary documents where lost, stolen or
destroyed, the person must provide a receipt for
replacement documents within the three days.
If an employee has presented a receipt for a
replacement document, he or she must produce the
actual document within 90 days of the
date employment begins.
Yes. You may terminate an
employee who fails to produce the required
documents, or a receipt for a replacement
documents (in the case of lost, stolen or
destroyed documents), within three business days
of the date employment begins. However, you must
apply these practices uniformly to all employees
and not just to those who do not appear to be
citizens.
The employer is required
to verify both identity and authorization to
work in the United States. The back of the
I-9 Form describes which documents establish a
new hire's identity and work authorization.
table of
acceptable I-9 documents.
- Documents listed in
List A
establish both identity and authorization to
work in the United States.
- List B
documents only establish identity.
- List C
documents only establish employment
eligibility, meaning the person is
authorized to work in the United States.
The employer must look at
the other documents papers to determine whether
they prove identity and work authorization.
An employer cannot require that the new hire
provide specific documents, such as a U.S. birth
certificate or a green card. A new hire
may show any of the documents listed on the I-9
form. The documents shown in List A on the
back of the I-9 form prove both identity and
authorization to work. If a new hire
provides a document in List A, only one document
is needed. If the document provided is not
in List A, the employee must provide a document
from List B and a document from List C.
No, employers can not
specify which document or documents are
acceptable from an employee. If the person
provides a document from List A, or a
document from List B and a document from
List C, the employer may not request any
other document to verify employment eligibility.
Yes, so long as the Social
Security Card does not state "NOT VALID FOR
EMPLOYMENT" or "VALID FOR WORK ONLY WITH INS
AUTHORIZATION." Social Security Cards
without either of these statements establish
employment eligibility and should be accepted as
proof of work authorization.
Yes. The employer must
also see proof of authorization to work such as
a U.S. Social Security card (a Social Security
card that says "Not Valid for Employment" is not
acceptable), a birth certificate showing birth
in the U.S. or a valid Immigration document
showing work authorization such as an employment
authorization card or an H-1 or other working
visa approval notice.
No. The employer cannot
require more than the minimum needed to comply
with the I-9 form. The employer cannot specify
which documents it wants to see.
You must examine the
document or documents. If the documents
reasonably appear on their face to be genuine
and to relate to the person presenting them, you
must accept them. To do otherwise could be an
unfair immigration-related employment practice.
If a document does not reasonably appear on its
face to be genuine and to relate to the person
presenting it, you must not accept it. You may
contact your local Immigration Service office
for assistance. The addresses and
telephone numbers of the Immigration Service
office nearest you is available online at USCIS.
No. Employees must present
original documents. The only exception is an
employee may present a certified copy of a birth
certificate.
No. The Immigration Service provided a
NOTICE TO EMPLOYERS (Form M-324 - Rev.10-26-89),
stating:
"On August 1, 1989, INS began issuing a
revised Resident Alien Card, Form I-551, to new
permanent resident aliens. . . . The I-551 is a
List A document . . . because it establishes
both identity and employment eligibility. The
card will also contain an expiration date,
making the card valid for 10-years from the date
of issuance; the new hire will then be required
to obtain a new card. However, because
employment authorization is unlimited for I-551
holders, there will be no need to update the
I-9."
Yes. The INS Handbook for Employers (page 14)
specifically states that "You may . . . accept
an expired document from List B to
establish identity." However, a driver's
license can only be used to establish a new
hire's identity for I-9 purposes. It is one of a
number of documents, called List B documents,
that only establish identity for I-9 purposes.
The new hire must also provide a document from
List C to establish work authorization.
This rule also means that if a List B document
is used to establish a new hire's identity, you
do not need to reverify the I-9 Form when that
document expires.
Yes. An expired United States passport
establishes both who the holder is (their
identity), and that they are a United States
citizen and therefore authorized to work in the
United States. Page 14 of the INS Handbook for
Employers specifically states that "you may
accept an expired United States Passport [for
I-9 purposes]." If a new hire provided a
passport on the I-9 Form, you do not need to
reverify the I-9 Form when the passport expires.
No. An employer may not refuse to hire
because work authorization will expire in the
future.
The law does not require nor prohibit copying
documents presented for I-9 purposes. Page 15 of
the INS Handbook for Employers states: "The law
does not require you [an employer] to photocopy
documents. However, if you wish to make
photocopies, you should do so for all employees,
and you should retain the photocopy with the
I-9. Photocopies must not be used for any other
purpose."
If you choose to photocopy the documents
presented for an I-9 Form, you must photocopy
the documents of ALL new hires, not just those
you think may be aliens. To do otherwise, may
subject the employer to a charge of unfair
immigration-related employment practices.
Nonagricultural employers must retain the I-9
file for 3 years after the date
employment begins or 1 year after the
person's employment is terminated, whichever is
later.
This means that you should retain I-9s for
all current employees for as long as they are
employed AND continue to maintain them for a
year after they are terminated. If an employee
leaves before they have been with the employer
for 3 years, the employer must maintain the I-9
for longer than 1 year from the date employment
is terminated. For example, if an employee
leaves after 1 year, the employer must maintain
that employee's I-9 for 2 years after they are
terminated, because all I-9 forms have to be
maintained for a minimum of 3 years.
The Law provides for penalties from $100 to
$1,000 for each incorrect or missing I-9.
These penalties may add up quickly.
Yes. There are anti-discrimination rules. An
employer could be fined or penalized for failing
to hire an authorized worker for discriminatory
reasons, for demanding specific documents, for
asking to see more than the minimum documents,
and for other reasons. The Office of Special
Counsel has caused employers to pay a total of
over $1 million in back-pay to workers, has
required employers to rehire workers, and has
levied fines totaling hundreds of thousands of
dollars. The amount of the fine will
depend on whether the employer made a genuine
error, if the workers were authorized to work,
if there were repeated violations or warnings,
and other factors.
