The law requires that all U.S. employers hiring any person as an employee verify through prescribed methods the identity of the individual and their authority to work in the United States. Enacted in 1986, the compliance obligations are pervasive in American business, and result in the completion of over 90 million I-9 employment verification forms each year. For employers, the verification and reverification obligations, record keeping requirements, and daily need to make human resources decisions create an ongoing tension between the need to maintain compliance with immigration laws and the prohibition on unlawful discrimination against foreign workers. The tension is heightened by the legal ambiguities that attend the use of independent contractors and the extent to which a contracting party may be liable for the immigration law violations of contractors where there may be constructive notice.
These are complex issues requiring continuous attention by corporate HR departments and their counsel, as well as a thorough understanding of the applicable regulations. Inasmuch as the maximum penalty for violations tops out at $16,000 per violation, employers are well advised to establish and maintain comprehensive intake procedures and have in place an effective, audited verification system.
What follows is a brief overview of the verification requirements:
Employment verification applies to all new employees hired to work in the U.S. after November 6, 1986, with the exception of:
- Employees working outside the US;
- Casual domestic employees providing sporadic, irregular or intermittent service in a private home;
- Independent contractors (provided contracting entity has no knowledge, actual or constructive, that any of contractors' employees are working without authorization);
- True volunteers; and
- Persons in the US and lawfully permitted to engage in certain activities while on foreign payrolls (e.g., technicians admitted as business visitors to perform a customer service call).
Employment verification is carried out by the employer, requiring the prospective employee to complete USCIS Form I-9 at the time of hiring (i.e., prior to the actual commencement of labor and compensation). The I-9 requires employees to produce certain documents which confirm their identity and authorization to work in the U.S. These documents are dictated by statute and may not be expanded, so the employer must maintain proof that these documents and these alone were the basis of verification. If the employee can produce satisfactory originals (no copies) of any of the listed documents that provides proof of both identity and work authorization, or one each of documents demonstrating identify and work authorization, the employer has no discretion to refuse to accept them as proof. If the employee fails to produce the necessary documents within three days of commencement of employment, or fails to produce a receipt requesting replacement of the original documents, the employer can and usually should fire the employee.
The list of verification documents establishing both identity and right to work include:
- United States passport;
- Alien Registration Receipt Card or Permanent Resident Card, Form I-551;
- An unexpired foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa;
- An unexpired Employment Authorization Document issued by the USCIS which contains a photograph, Form I-766; or
- An unexpired foreign passport with an Arrival-Departure Record, Form I-94 or I-94A, in which the duration of stay has not been exceeded.
Verification documents of identity only (also requires document verifying right to work):
For all individuals:
- A U.S. driver's license or identification card containing a photograph or biometric information;
- School identification card with a photograph;
- Voter's registration card;
- U.S. military card or draft record;
- Military dependent's identification card;
- Native American tribal documents; or
- United States Coast Guard Merchant Mariner Card.
For individuals under age 18 who cannot provide one of the other List B documents:
- School record or report card;
- Medical record; or
- Day-care or nursery school record.
Verification documents for establishing work authorization only (also requires document verifying identity):
- Social security card other than one which has printed on its face "not valid for employment purposes", “valid for work only with INS authorization”, or “valid for work only with DHS authorization”;
- A “Certification of Birth Abroad”, or “Certification of Report of Birth” issued by the Department of State;
- An original or certified copy of a U.S. birth certificate;
- Native American tribal document;
- United States Citizen Identification Card, Form I-197;
- Identification Card for Use of Resident Citizen in the United States, Form I-179; or
- An unexpired employment authorization document issued by the USCIS.
Once completed and verified, the employer must retain the I-9 for the duration of the employment relationship plus one year, or for three years after the date of hire, whichever is later.