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.
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.
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 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 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.
The penalty for I-9 violations can be high. For example, the Excalibur Hotel and Casino in Las Vegas paid $50,000 in civil penalties in one year after it illegally let go 22 employees who had legal documents. The hotel specified the documents that it would accept. The Justice Department’s Office of Special Counsel for Immigration Related Unfair Employment Practices stepped in after such an employee filed a complaint.
You can find a copy of the I-9 Form on our Resources page.