What is the process for verifying eligibility to work in the U.S.?

As part of the new-hire process, employers must verify that a new hire is either a U.S. citizen or is an alien entitled to work in the United States. Verifications must be made using Form I-9, Employment Eligibility Verification. (A sample Form I-9 is available at ¶36,255 .) On the form, new hires must list their status (for example, U.S. citizen, permanent resident, or authorized alien) that authorizes them to work in the United States. New hires must also present to the employer certain documents that establish their identity and authorization to work.

Verification assistance. Employment verification assistance is available to employers who choose to participate in the Department of Homeland Security’s E-Verify program. See ¶36,241 for information on E-Verify.

What agency oversees the employment verification process? Employment verification was administered by the Immigration and Naturalization Service until March 1, 2003, when the INS became part of the U.S. Department of Homeland Security. INS functions were then turned over to the U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (USICE) offices within the Department of Homeland Security, with employment verification going to the USCIS.

What are the requirements that an employer must fulfill? Employers have the following verification obligations:

• Employees must be instructed to fill out their portion of Form I-9 when they begin work;

• Employers must check documents establishing employees' identities and authorization to work;

• Employers must properly complete the employer portion of Form I-9;

• Employers must keep I-9 forms for at least three years or until one year after an employee leaves employment, whichever is later; and

• Employers must present, upon request, I-9 forms for inspection by an authorized official of the Department of Homeland Security, the Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practices of the Department of Justice.

I-9 forms. Employment verification is accomplished through the use of Form I-9, which is divided into three sections. In Section One, employees attest that they are citizens, lawful permanent residents, or aliens authorized to work. Employers are responsible for ensuring that Section One is completed. Section Two is where employers certify which documents they have examined. They must sign and date this section. Section Three, also completed by employers, is used for updating and reverification.

What documents are acceptable to prove identity and work authorization? The documents that may be used by the employee for proving identity and work authorization are divided into three categories:

1. Documents that establish both identity and employment authorization (List A documents);

2. Documents that establish identity only (List B documents); and

3. Documents that establish work authorization only (List C documents).

Individuals may present either one original document that establishes both work authorization and identity, or two original documents, one establishing work authorization and the second establishing identity. Be sure that the new hire provides either:

1. one document from List A or

2. one document from List B and List C.

The employer must also signify that the employer has examined the documents and found them to be genuine.

Acceptable identity and eligibility documents.

The following items are on List A:

• U.S. passport or U.S. passport card

• Alien Registration Receipt Card or Permanent Resident Card (Form I-551)

• Foreign passport with a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa

• Employment Authorization Document that contains a photograph (Form I-766)

• In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with a Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form.

• Passport from the Federated States of Micronesia or the Republic of the Marshall Islands, along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

Acceptable identity-only documents. The following items are on List B:

• Driver's license

• State, federal or local ID card

• Native American Tribal document

• Canadian Driver's license

• School photo ID card

• U.S. military card or draft record

• Voter's registration card

• U.S. Coast Guard Merchant Mariner Card

• Military dependent's ID card

• School report cards, hospital records, day-care or nursery school records (for minors)

Acceptable work authorization-only documents. The following items are on List C:

• Social security card without employment restrictions

• Native American Tribal document

• U.S. birth certificate

• U.S. citizen ID card (I-197)

• ID card for use of Resident Alien (I-179)

• Employment authorization document issued by the Department of Homeland Security

• State Department certification of birth abroad (Form FS-545)

• State Department certification of report of birth (Form DS-1350)

Does an employer have to examine documents for every new hire? Yes, regardless of whether or not you believe an individual is authorized to work in the U.S. Do not ask for more or different documents from individuals or make copies of documents of only individuals of certain national origin or citizenship status. Employers who do so may be setting themselves up for charges of unfair immigration-related employment practices.

Availability of records. I-9 forms and any related document, such as the certification of employability provided by a state employment agency, must be made available upon a three-day notice for inspection by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, as well as to representatives of the Department of Homeland Security and the Department of Labor.

What happens if an employer does not process the I-9 form properly? Employers have a continuing duty to prepare and maintain I-9 forms verifying employment eligibility under the Immigration Reform and Control Act of 1986. A warning for failure to comply with the IRCA's verification and recordkeeping requirements may be followed up by fines. Employers have ten business days to correct any technical or procedural shortcomings.

Recordkeeping. For a violation of recordkeeping requirements, employers face a fine of $110 to $1,100 for each individual.

Document fraud. If an employer, while attempting to meet the paperwork requirements, accepts any document that was issued to a person other than the individual presenting the document, the employer will be subject to charges of document fraud. Any person or entity found guilty of document fraud will first be assessed a civil penalty of not less than $375 and not more than $3,200 for each document used, accepted, or created unlawfully and each instance of use, acceptance, or creation. The civil fine for any subsequent violation will increase to not less than $3,200 and not more than $6,500.

Unauthorized aliens. For the first violation, a fine of $375 to $3,200 for each unauthorized alien; for the second violation, $3,200 to $6,500 for each unauthorized alien; for three or more violations, $4,300 to $16,000 for each alien involved.

Criminal penalties. Repeat offenders face criminal fines of up to $3,000 for each unauthorized alien and imprisonment for up to six months.