Employers are prohibited by United States law from knowingly employing or hiring aliens who are not authorized to work in the country. However, employers who keep proper records have an affirmative defense to liability if, after following the law and taking reasonable measures to investigate suspicious circumstances, hired alien workers turn out to lack work authorization. Proper procedures must be followed both to avoid liability and to gain this affirmative defense.
The Timing of Verification
The timing of work authorization verification depends upon the length of the employee's term of work. If an employee is hired for less than three business days, the verification process must take place at the time the employee is hired. If the employee is hired for a longer period, the temporal requirements are somewhat more relaxed. In such a case, the verification process must begin on the day the employee starts working, and it must be complete by the third day after hire.
On a few occasions, it is acceptable for this process to take longer than three days. For example, if an employee gives the employer a receipt showing that he or she has requested a replacement of a previously issued lost, stolen, or damaged document, the employee can work for 90 days while waiting for the replacement. If the employee provides a temporary stamp as a receipt for an alien registration receipt card, he or she may work up to 180 days while waiting for the card. Finally, an alien who produces a refugee admission stamp may work up to 90 days while waiting for an employment authorization or social security card.
The Actual Verification Procedure
The employer must review the documents and complete the Form I-9. This consists of three steps. First, the employer must make sure that the first part of the I-9, which is filled out by the employee, is complete and signed. Second, the employer must compare the documents the employee provides both with the list of available documents provided on the form and with the employee. This requires an employer to ensure that the employee has provided proper evidence of both identity and employment eligibility.
In short, an employee may provide one document from List A, which evidences both identify and work authorization. In the alternative, the employee may produce one document from List B, which contains identity-related documents, along with one document from List C, which evidences work authorization.
The List A identify and authorization documents include U.S. passports, certificates of citizenship and naturalization, green cards, unexpired temporary resident cards, unexpired employment authorization cards, unexpired employment authorization documents, unexpired foreign passports with stamps showing permanent residence, and unexpired refugee travel documents. If an employee presents any of these documents, no further documentation is required.
Instead of producing one List A document, an employee may produce one List B identity document and one List C work eligibility document. List B documents include state and Canadian driver's licenses containing either pictures or descriptions, state-issued identification cards containing either pictures or descriptions, school identification cards containing pictures, voter's registration cards, military cards and draft records, military dependent's identification cards, Coast Guard Merchant Mariner cards, Native American tribal documents, and federal citizen identification cards.
List C documents include social security number cards that do not indicate they are not valid for employment purposes, original and certified copies of governmental issued birth certificates, Department of State issued birth certificates, employment authorization documents, Native American tribal documents, and federal citizen identification cards.
Employers must ensure that the documents presented appear to be genuine and that they are consistent with other known information about the employee. After the documents are reviewed, the employer completes the second section of the I-9 form. Employers keep these forms until three years after the hiring date or one year after termination, whichever is later.
Special rules exist for employees under 18, in that additional documents are permitted as List B documents: school records, report cards, health card records, and daycare or nursery school records. Parents can also complete the I-9 form for their children, vouching for the child's identify. Handicapped persons being placed by nonprofit organizations or rehabilitation programs also benefit from these same special rules. In addition, the organization sponsoring such a person in employment can complete the I-9 on his or her behalf.
Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.
