March 29, 2018

The employer’s role in documenting alien employees is a balancing act.

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

“If an employee can’t complete Section 1 without assistance or if he or she needs Form 1-9 translated, someone may assist him or her. The preparer or translator must read the form to the employee, assist him or her in completing Section 1 and have the employee sign or mark the form in the appropriate place. The preparer or translator must then complete the Preparer and/or Translator Certification Block on Form 1-9”

— USCIS Handbook for Employers, Guidance for Completing Form 1-9

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 they leave, whichever is later.

Acceptable Documentation

In 1996, the law was amended to reduce the number of documents required for verification. There are three categories of acceptable documents:

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 a 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 aren’t acceptable. You can’t 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 U.S. Citizen and Immigration Services (USCIS) office.

Who Must Undergo Verification?

You must have an I-9 on file for all employees hired after Nov. 6, 1986, regardless of citizenship. This includes every employee who receives a W-2 tax statement, even if they only work one day. You aren’t 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

Click here to download the I-9 Employment Eligibility Verification form from the USCIS website.

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 expiration 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-verification to a certain class of employees in order to avoid claims that your company engages in unfair employment practices.

Consult with your attorneys and HR advisors for more information.

© 2018