Employment Eligibility Verification Concepts And Maintaining Compliance
Background
In 1986 the Immigration Reform and Control Act ("IRCA") was passed to provide additional
security measures to keep U.S. employers from hiring illegal immigrants. IRCA mandates
that all U.S. employers are responsible to document that each employee hired after
November 6, 1986 (including U.S. citizen employees) has proper employment authorization
and that each employee's identity is consistent with their employment eligibility
documents. For a chart listing acceptable documents, please
click here.
In order to evidence an employer's responsibility to review each employee's employment
eligibility and identity documents after hiring, the government developed the Employment
Eligibility Verification Form I-9. The Form I-9 requires employees to present either
(i) List A document to establish both employment eligibility and identity; or (ii)
separate documents from Lists B and C to establish their employment eligibility
and identity respectively.
Finally, in addition to establishing the I-9 employment verification process, IRCA
also prohibited discrimination in the hiring and discharging of a protected class
of individuals based upon national origin and citizenship status. The protected
class includes citizens or nationals of the United States, lawful permanent residents,
temporary residents, and persons granted refugee or asylee status. The intent of
this section of IRCA was to ensure that the protected class of individuals would
be considered for employment solely on the basis of their qualifications, not their
national origin or citizenship status. As a result of this provision, employers
must be careful that steps taken to ensure I-9 compliance with one employee are
taken for all (i.e. copying of presented documents, etc.).
What is an Employee?
An employee is defined as, "any person who provides services for an employer in
exchange for wages or other remuneration." There are four notable exceptions to
this definition for which I-9 forms need not be completed:
- employees hired before 11/7/1986;
- employees hired for irregular or intermittent casual domestic work;
- independent contractors; and
- workers provided by a temporary agency and other contracting
services.
Volunteer Versus Unpaid Employee
There is a key distinction to be made between volunteer work versus unpaid employment.
The CIS has stated that even uncompensated services may be considered employment
in situations where a U.S. worker would have to be hired "but for" the presence
of the "volunteer." The line between the two is not etched in stone, but the prevailing
view is that volunteer work is usually charitable in nature.
Completing the I-9 Form
The I-9 Form itself can be broken down into three Sections:
- Section 1 - Employee Information and Verification;
- Section 2 - Employer Review and Verification; and
- Section 3 - Updating and Reverification.
Section 1
Section 1 of the I-9 form must be completed in full by the employee no later than
the day the employee starts work. Employers may be responsible for missing information
in Section 1, but they may not request documents to verify the information provided
by the employee. The employee must provide all the personal information requested
as well as attest to his or her status in the U.S. as either:
- A citizen or national of the U.S.;
- A lawful permanent resident; or
- An alien authorized to work until a certain date.
Proper completion of this attestation portion of Section 1 and the employee's signature
are the critical pieces of information in Section 1. Employees who cannot or will
not attest to his or her status cannot be employed or remain employed since it should
be inferred by the employer that the employee lacks proper employment authorization.
Section 2
The employer or its agent must review all original identity and employment eligibility
documents. Photocopies or fax copies are not acceptable. The original documents
must be provided in full. The employee may present one document from List A that
establishes both identity and employment eligibility or separate List B (identity)
and List C (employment eligibility) documents. For a chart of acceptable documents,
please click here.
It is important to note here that an employer cannot specify which documents it
would prefer to see. As long as the documents presented enable the employer to complete
the I-9 form, the employer must accept them. It is also important to note that a
Social Security Card bearing the legend "Valid for Employment Only with INS/CIS
Authorization" is not an acceptable List C document.
Although employers are not expected to be document experts, employers are responsible
for reviewing the employee's documents for the appearance of authenticity and to
ensure that the documents are in fact those of the employee. If an employer reviews
a document that does not appear genuine, the employer should reject the document
and ask the employee to provide further documentation to satisfy the I-9 requirement.
Employees who will not or cannot supply the necessary documents within 72 hours
should be terminated.
Finally, employers are responsible for inserting the employee's start date in the
certification portion of the I-9 form and then sign and provide all requested information
under the signature line.
Section 3
Section 3 of the form is used by employers to reverify and update information. Reverification
is necessary when the employee's temporary employment authorization expires or the
employee is rehired within the retention period for the I-9 form. The critical pieces
of information an employer should require an employee to reverify are the expiration
of their status identified under the "Alien Authorized to Work Until" in Section
1 and/or an expired List C document in Section 2 evidencing the employee's authorized
employment. It is important to note that an employee is not required to present
a new version of the previously expired document. At the time of reverification,
an employee may present any document(s) that will enable the employer to complete
Section 3 of the I-9 form. Identity documents and permanent resident cards should
not be reverified even though the permanent residence card may have an expiration
date. A permanent resident's status (and inherent employment authorization) does
not expire just because the card memorializing this status does. Employers should
completely fill in Section 3 when necessary and sign as indicated. Please note the
deadline for reverifying the expiration of an employee's status or employment authorization
is the date it expires.
Rehiring of Employees
The I-9 forms of employees rehired within three years of a previous start date may
be reverified in lieu of completing a new form. If the employee's Employment Authorization
is the same as previously documented in Section 2, the employer need only fill in
the date of rehire in Section 3 and sign and date the form. If the employee's Employment
Authorization in Section 3 has expired or changed, the employer must reverify the
employee by fully completing Section 3 of the form. Please note that the person
who actually viewed the documents should be the individual that signs the attestation
section at the bottom of the form.
Retention Requirement
An employer must retain the I-9 form for 3 years from the date employment began
or 1 year after the employee was terminated, whichever is later.
Photocopying of Documents
Employers may, but are not required to, make photocopies of the documents presented
to them to complete Section 2. However, this practice must be across the board and
must be required of every new hire regardless of national origin or citizenship.
If this policy is not uniform for every employee, it is possible the employer could
be charged with discrimination.
I-9 Forms Not on File or Missing
Employers are responsible for having an I-9 form on file for every current employee
as well as those former employees whose I-9 form is still subject to the retention
requirement. If an employer discovers an employee for whom an I-9 form was not completed
or has since been lost, the employer should ask the employee to immediately complete
the I-9 form and present the necessary documents required by Section 2 of the form.
The form should be signed when completed and never backdated.
Unauthorized Employees
If an employer discovers an employee that lacks employment authorization or has
provided false documentation, the employer may allow such an employee another opportunity
to complete or amend the I-9 form accordingly. However, employers must note that
if an employee remains employed and cannot provide documentation to complete the
I-9 form, the employer may be subject to a charge of "knowingly continuing to employ"
an individual without employment authorization. Therefore, employers should resolve
situations as quickly as possible.
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