The basic requirement to verify work authorization is the Form I-9. This form is available through the U.S. Citizenship and Immigration Services at http://uscis.gov/graphics/formsfee/forms/files/i-9.pdf. 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.
A form I-9 can be completed as soon as an individual accepts the job. Even if the employee doesn’t start actively working (working for pay) until a later date, the individual has been hired and the employer can complete the form I-9.
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. You may also review our table of acceptable I-9 documents.
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 at the Immigration Service district office directory.
No. Employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate.
No. U.S. citizens and noncitizen nationals never need reverification. Do not reverify the following documents: An expired U.S. Passport or Passport Card; an Alien Registration Receipt Card/Permanent Resident Card (Form I-551); or a List B document that has expired. (USCIS Handbook for Employers at page 9.)
No. All documents MUST be unexpired at the time the I-9 Form is completed. (USCIS Handbook for Employers at page 52.)
No. All documents, including a U.S. Passport or Passport Card, MUST be unexpired at the time the I-9 Form is completed. (USCIS Handbook for Employers at page 51)
An employer may not refuse to hire an individual or refuse to accept a document because it has a future expiration date. You must accept any document (from List A or List C) listed on Form I-9 that on it’s face reasonably appears to be genuine and to relate to the person presenting it. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA. (USCIS Handbook for Employers at page 27.)
The employer may choose to copy or scan documents an employee presents when completing Form I-9, which the employer may, but is not required to, retain with his or her Form I-9. Even if the employer retains copies of documentation, the employer is still required to fully complete Section 2 of Form I-9. If the employer chooses to retain copies of an employee’s documents, the employer must do so for all employees, regardless of national origin or citizenship status, or the employer may be in violation of anti-discrimination laws.
Copies that are scanned and stored electronically must be retrievable consistent with DHS’s standards on electronic retention, documentation, security, and electronic signatures for employers and employees, as specified in 8 CFR Part 274a.2(b)(3).
USCIS recommends that employers who choose to retain copies of employees’ documentation keep those copies together with their Form I-9.
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 $1,100 for each incorrect or missing I-9. These penalties may add up quickly. Recently, the Immigration Service accused Disneyland in California of having over a thousand paperwork violations, and issued a notice to fine Disneyland $395,000. In another case, the Immigration Service fined a Georgia packing company over $1 million dollars for various violations, including the smuggling of undocumented aliens into the U.S.
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.
Note: The answers provided on this page are for informational purposes only and do not constitute legal advice.
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