The Employer’s Role in Documenting Workers Eligibility to Work (Form I-9)

pen-543858_1280The employer’s role in documenting alien workers is a balancing act.

Under the Immigration Reform and Control Act (IRCA), you must verify through examination of certain documents that employees are authorized to work in the U.S.  At the same time, you must avoid unfair employment practices.

By law, you must complete an I-9 Employment Eligibility Verification form for each new hire and keep the forms on file.  Former employees’ forms must be kept for three years from the hiring date or one year after termination, whichever is later.

Acceptable Documentation

There are three categories of acceptable documents you can use as verification:

  • List A – Documents that establish both identity and employment eligibility, such as a U.S. passport or unexpired temporary resident card.
  • List B – Documents that establish identity, such as driver’s license or voter registration card.
  • List C – Documents that establish employment eligibility, such as a U.S. Social Security card or birth certificate.

You must examine and record on the I-9 form either one document from List A or one document each from Lists B and C.  Photocopies are not acceptable.  You cannot specify the documents that you want.  If the documents appear to be authentic, you must accept them.  If they appear to be falsified or to belong to someone else, you should contact the nearest Immigration and Naturalization Service (INS) office.

Who Must Undergo Verification?

You must have an I-9 on file for all employees hired after November 6, 1986, regardless of citizenship.  This includes every employee who receives a W-2 tax statement, even if they only work one day.  You are not required to verify independent contractors or their workers, but you should ascertain that the workers have gone through I-9 verification.  If you knowingly use an independent contractor who employs unauthorized alien workers, you expose yourself to a potential I-9 violation.

Handling New Hires

Employers must complete the I-9 verification process within three business days of the new employee’s first day on the job.  The only exception occurs when the new hire lacks a required piece of documentation and shows a receipt proving they have applied for a replacement document.  In such a case, all documents must be presented and the I-9 form completed within 90 days of the employee’s first day of work.  If the documentation is not produced, the employee cannot continue to work.  The employer can suspend the employee without pay until the documents are obtained.

You can conduct the I-9 verification process before the new hire starts work, but never initiate it before a job offer is made and accepted.  Not hiring someone after seeing documents that reveal citizenship status, age, and national origin could be grounds for a discrimination claim.

Re-verification will be necessary if an employee notes an expiration date for employment eligibility in Section 1 of the I-9 form or expirations for certain documents in Section 2.  Re-verification is also advised if the company undergoes a merger, acquisition, or re-organization.  Take care not to limit re-organization to a certain class of workers in order to avoid claims that your company engages in unfair employment practices.

The penalty for I-9 violations can be high.  For example, in 2008 the DHS announced the penalty for a first immigration-related offense could be up to $3,300.

For more information about the document authorization process, consult with your attorney.

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