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.