Question:

What are my legal obligations as an employer to ensure that new employees are eligible to work in the United States?

Answer:

The Immigration Reform and Control Act of 1986 (IRCA), 8 United States Code Section 1324a, mandates that all U.S. employers verify the employment eligibility and identity of all employees, even U.S. citizens, hired to work by that employer in the United States after November 6, 1986. The purpose of this law is to prevent the unlawful hiring and continued employment of unauthorized workers. An employer that fails to comply with IRCA risks being subject to both civil and criminal liability including substantial fines.

The means by which employers are required to verify the employment status of new employees is by reviewing legally specified documentation, and recording this information on the “Employment Eligibility Verification” form, otherwise known as “Form I-9.” Form I-9 is a three-part document that must be filled out by both the employer and the employee.

The new employee must complete “Section 1” of Form I-9 at the time of hire. In “Section 1,” the employee must attest, under penalty of perjury, that he/she is either 1) a citizen or national of the U.S., 2) a lawful permanent resident, or 3) an alien authorized to work in the U.S. until a specified date.

The employer must complete “Section 2” of Form I-9 by examining evidence of the employee’s identity and employment eligibility within three (3) business days of the employee’s date of hire. If an employee is unable to present the required documentation within three (3) business days, they must present to the employer a receipt for an application to replace the employment authorization documents within three (3) business days and the actual documents to the employer within ninety (90) calendar days. However, if an employee is hired for less than three business days, “Section 2” must be completed at the time employment begins.

The documentation of employee eligibility and identity that an employer is required to examine and verify is listed on p. 3 of Form I-9 under “Lists of Acceptable Documents.” The employer may accept any “List A” document, i.e. U.S. passport, Certificate of U.S. Citizenship (establishing both identity and employment eligibility), or a combination of a “List B” document, i.e. state driver’s license, voter’s registration card (establishing identity), and “List C” document, i.e. U.S. social security card, state birth certificate (establishing work eligibility). The employee is required to present original documents to the employer with the exception of a certified photocopy of a birth certificate. It is the employee’s choice regarding what documentation to present to the employer as long as the documentation is on the “Lists of Acceptable Documents” on Form I-9. If the employer requests more or different documentation then the necessary minimum, it could constitute an unfair immigration-related employment practice.

Upon presentation of the documentation by the employee, the employer must examine the documentation and accept them if they reasonably appear to be genuine and relate to the employee who presents them. The employer must record details of this documentation in “Section 2” of Form I-9. Although not required, if the employer chooses to photocopy the documentation presented by the employee, the employer must consistently apply this policy to all of its employees. If the documentation does not reasonably appear to be genuine or relate to the employee who presented the documentation, the employer must refuse acceptance and ask for other documentation from the “Lists of Acceptable Documents” on Form I-9. If an employee is unable to present the required documentation, an employer should not continue to employ the employee.

An employer must complete “Section 3” of Form I-9 when it is necessary to update or reverify an employee’s work authorization documentation, i.e. if the employee’s previous grant of work authorization has expired.

Employers must retain completed Form I-9s for three (3) years after an employee’s date of hire or one (1) year after the date an employee’s employment ends, whichever is later. The best practice is to keep completed Form I-9s separate from other personnel records in order to quickly respond to an official inspection by the Bureau of Immigration and Customs Enforcement, Department of Labor, and/or the Department of Justice.

For further information about Form I-9 Compliance Requirements and to obtain a Form I-9, go to the recently updated U.S. Citizenship and Immigration Services website located at http://www.uscis.gov, and click on “For Employers.”

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