10/ 21/ 2005
Most small-business owners know that federal law requires employers to verify a new employee’s identity and eligibility to work on the federal I-9 form. While the I-9 form has changed little since 1991, questions still arise about its requirements. For instance, what kinds of documents can an employee show? How many documents are required to verify employment eligibility? What happens when an employee fails to produce required documents? How long must you keep the I-9 form? Find the answers to these and other common I-9 questions below.
Who must complete an I-9?
Every individual hired must prove that they are eligible to work in the United States and complete the I-9 form. U.S. citizens and nationals are automatically eligible for employment, but still must verify their status. Applicants for employment should not fill out an I-9, only individuals who have been hired.
What is required to establish eligibility?
An employee can present several documents to establish eligibility. The back of the I-9 form contains a complete list of acceptable documents. An employee may present any document from List A, or any combination of documents, such as one from List B and one from List C. Acceptable documents include, but are not limited to, certificates of naturalization, unexpired, temporary resident alien cards and unexpired employment authorization cards. Employers may only accept unexpired documents.
Can I require a green card only as proof of a national’s eligibility?
No. A green card is only one of a number of acceptable documents for employment verification. According to the Immigration Reform & Control Act of 1986, it is unlawful for employers to specify which documents they will accept from an employee. Employers who require individuals to present only certain documents may be subject to sanctions for immigration discrimination
Are there other discrimination provisions I should be aware of?
Yes. It is illegal to discriminate against an individual because of his or her national origin or citizenship status. In addition, employers may not discriminate against an individual because of an upcoming expiration date on his or her document. The U.S. Department of Justice is in charge of investigating claims of employment-related immigration discrimination.
May I accept a photocopy of an acceptable document?
No. Employees must present only original documents to complete the I-9. Employees may present a certified copy of a birth certificate in lieu of the original.
What if the employee was not authorized, or the document was forged?
As long the I-9 is filled out properly, an employer’s liability is limited. An employer must examine the document and determine if it reasonably appears to be genuine and belonging to that employee. If it meets those qualifications, an employer is required to accept the document. If the document doesn’t appear to be genuine, refuse the document and contact the local U.S. Citizenship and Immigration Services office. The government can only impose sanctions if the employer knowingly hired an employee ineligible to work in the United States.
Must I keep a photocopy of the documents?
No. Employers are not required to keep photocopies of the documents. They may choose, however, to photocopy the documents for their own records.
Do all Social Security cards count for employment eligibility?
No. While a majority of Social Security cards are acceptable for the I-9 requirements, a few restricted cards are unacceptable. Social Security cards that say “valid only with INS or DHS authorization” or “not valid for employment” do not satisfy the I-9 requirements. Only the standard-issued Social Security card can be used to complete the I-9 form.
What if an employee refuses to furnish the documents?
After three days, an employee who refuses to provide any of the acceptable documents may be terminated. If the employee has a receipt for a replacement document, they have 90 days to present the new document. These practices must be applied uniformly to all employees.
What if I discover later that the employee is unauthorized?
The employer should question the employee and provide him or her with an opportunity to furnish acceptable documents. If the employee cannot provide acceptable documents, employment should be terminated.
Do I need to file the I-9 with the U.S. Citizenship and Immigration Services?
No. Employers do not file I-9 forms with the USCIS or any other government agency. Employers must keep the I-9 on file for three years after the date of hire or for one year past the date of termination, whichever is later. Employers should keep the I-9 forms in a location that they can access within three days of a notification of USCIS inspection.
For more information about immigration, contact your local U.S. Citizenship and Immigration field office.
