I-9 Employment Verification Requirements
Posted Aug 23, 2002

Recent news coverage on Social Security Administration (SSA) "no-match" letters has focused attention on the legal requirements for employers to verify the work eligibility of their employees. We addressed the SSA letters in our May 31, 2002 article, Social Security 'No-Match' Letters. In keeping with the renewed emphasis on employer compliance, we take this opportunity to provide a reminder regarding basic employer verification requirements to benefit corporate and individual clients of The Law Office of Sheela Murthy, P.C. and readers of MurthyBulletin and MurthyDotCom.

What Employers Must Do

Under the Immigration Reform and Control Act (IRCA) of 1986, it is illegal to employ, recruit, or refer for a fee a person who is not legally authorized to work in the U.S. Accordingly, employers are required to verify the identity and work authorization status of each and every newly hired employee. Employment agencies and other organizations that recruit or refer workers for a fee, must also comply with the verification procedures. The requirement applies with respect to nearly all employees, even U.S. citizens and permanent residents. The law provides for only certain, narrow exceptions.

Verification Procedure

Within three days of hire, each employee is required to present either a document showing both identity and employment eligibility or a combination of documents, one showing identity and the other proving eligibility to work as listed in the INS Employment Eligibility Verification, known as Form I-9. The I-9 instructions include an exhaustive list of all the specific documents legally acceptable for this purpose; no other documents will qualify.

Please note that INS has implemented various changes to the list of documents. Those changes have not yet been reflected in the Form instructions, but are listed on the I-9 page on the INS WebSite. Employers should also consult the INS Handbook for Employers. This book is available through the INS, Office of Business Liaison.

The employer must examine the original documents to determine that they belong to the individual and appear genuine. The employer is not expected to be a document expert but is held to a "reasonableness" standard with respect to whether the documents are fraudulent. The employer's representative certifies under penalty of perjury on the I-9 Form that s/he has examined the documents to verify the employee's work status.

Re-Verification

If the employee's documentation of work eligibility has an expiration date, then the employer must re-verify the person's status on or prior to that expiration date. The employer must also re-verify the documents of employees who are rehired after having left their employment. These individuals must have a new I-9 if the rehire is more than three years after the initial date of hire.

What Employers Must Not Do

It is unlawful to discriminate on the basis of national origin or citizenship. However, there are situations when an employer can have a policy requiring U.S. citizenship. The most common examples involve government positions and those requiring certain security clearances.

Another prohibited practice is "document abuse." That is, an employer is not allowed to request that an employee produce more or different documents. The employee may present any acceptable document or combination of documents that meets the requirements in the I-9 instructions and Handbook. If a person files a discrimination charge against the employer or participates in an investigation in connection with such a claim the employer is not allowed to take any retaliatory action.

Record Retention

The I-9s are not filed with the INS. Employers must maintain these records in their own, separate files. The documents must be maintained for the greater of 3 years after the date of hire or one year after employment termination. Whatever the manner of records retention, it must allow for accessibility at the worksite within 3 days, upon official request.

Other Issues and Resources

There are a number of issues that an employer must address in connection with I-9s. These include a limited exemption for "casual hires" and independent contractors. There are also issues regarding the proper action if it is discovered that an employee has provided false documentation and/or is not authorized to work. As a primer to understanding these issues, the INS has posted answers to Frequently Asked Questions about Employment Eligibility and About Form I-9, Employment Eligibility Verification. It is vital that employers understand the I-9 requirements. Failure to comply can lead to an INS investigation and, if the misconduct is repeated and willful, substantial fines and even criminal penalties.