By Jared Nusbaum
Under federal law, it’s illegal for a U.S. employer to employ a person who’s not authorized to work in the United States. Every new employee, including U.S. citizens, must present documents that show identity and work authorization. Employers are responsible for knowing which documents to accept and for verifying that those documents reasonably appear to be authentic. In practice, this means that every new hire must sign IRS form I-9 and the Employment Eligibility Verification, and present appropriate supporting documents.
With recent media coverage of immigration enforcement actions in the workplace, it’s important for employers to have processes in place to comply with work authorization.
New hire documentation
Form I-9 must be signed by every new hire, regardless of their country of citizenship.
Certain documents prove identity (e.g., U.S. driver’s license); others prove work authorization (e.g., U.S. Citizen ID card) and others prove both (e.g., green card). Form I-9 lists the documents that fall into each category. Workers can produce a document that proves identity and authorization (“List A” documents) or separate items to prove identity (“List B”) and authorization (“List C”). The documents must be produced in hard copy.
The document or combination of documents must meet I-9 requirements and be provided within three days of starting work. Beyond that, an employer can’t specify which documents it will accept. For example, you can’t decide that you won’t accept school photo IDs as proof of identity, since the I-9 states that those items are acceptable.
In some situations, employees can produce receipts showing that they have applied for and haven’t received the appropriate documents. Check with an employment law attorney if you receive a receipt instead of an original document.
How should I review documents?
Within three days of an employee’s start date, examine the documents presented. The law states that “if the document reasonably appears on its face to be genuine,” the employer should assume it is genuine. You should then complete and sign the portion of the I-9 indicating that documents have been presented and reviewed. The employee must also sign. You must keep a copy (paper or electronic) of the completed I-9 for at least three years after hiring the employee or one year after terminating them, whichever is later.
Are they who they say they are?
The Federal E-verify system allows employers to cross-check employee information such as Social Security numbers. It’s free to use and mandatory in some states. If you use E-verify, you must use it for all new hires. The website explains how to proceed if an employee’s information is flagged as inaccurate, including when you can terminate a new hire based on E-verify results.
Am I liable for falsified documents?
If an employee submits falsified documents you are not liable if you fulfilled the statutory requirements and acted in good faith. However, employers who are repeat offenders may face criminal penalties, including jail time and fines up to $3,000 per unauthorized employee. There are civil fines for employers who knowingly hire or retain unauthorized workers.
Do authorizations expire?
Many employment authorization documents have an expiration date. If an employee’s authorization period is about to expire, the employee must reverify work authorization by producing another document that shows continuing employment eligibility or new authorization. The employer should then complete Section 3 of the I-9 (the Reverification section). Reverification should occur before the previous authorization expires.
If the employee can’t produce another document showing work authorization, the employer can’t continue to employ them. However, at the outset, employers may not refuse to hire someone solely because their work authorization has an expiration date.
Can I rehire seasonal employees?
If you rehire an employee within three years of their last employment date with you, no new I-9 is necessary. However, federal regulations provide an exception for employees who have a reasonable expectation of continued employment. If you rehire the same seasonal workers every year, you can probably just keep the same I-9 on file. Make sure that you can demonstrate that the employee’s expectation of rehiring would be reasonable (e.g., they’re not collecting retirement benefits, they’re complying with any handbook or other workplace policies regarding absences and the company has the financial ability to rehire). Guidance on several rehiring and reverification scenarios is available from the U.S. Citizenship and Immigration Services (www.uscis.gov
With today’s heightened focus on immigration, it pays to understand the rules and make sure you follow them to a T. Failure to do so could be a fatal mistake for your company.
Access the forms
: Learn more about the work verification requirements and download forms at www.uscis.gov/forms
Jared Nusbaum is an attorney with the law firm of Zlimen & McGuiness, PLLC in St. Paul, MN. His practice areas include employment law, small business law, litigation, and bankruptcy. Email him at firstname.lastname@example.org.