Proof of Work Authorization in the I-9 Process
It’s critical to make certain that your business is properly handling proof of work authorization for legal immigrants. It’s a bit trickier to handle these employees in comparison to hiring US citizens because many of the documents presented to prove work eligibility and identity expire and therefore must be updated in a timely manner. Maintaining a rolling wave of expiration dates can be difficult without software to automatically keep track, but it simply must be done in this age of I-9 compliance. At the same time, companies must handle employees’ status without hint of discrimination and in line with federal law. The line can seem crooked sometimes, and it’s imperative that managers and HR personnel who interface with new hires understand how to walk it properly to avoid possible litigation as well as trouble of a different kind from the federal government. Here’s a primer.
The Documents
When a new employee fills out his (or her) Employment Eligibility Verification (I-9) form, you (the employer) must receive documents from a predetermined list maintained by US Citizenship and Immigration Services (ICE) that, in total, suffice to prove the new employee’s identity and authorization to work in the United States. There are three lists of acceptable documents, and all documents must be unexpired upon presentation. The I-9 denotes which combinations will work for these purposes.
- List A contains documents that suffice to establish both identity and authorization to work in the US. Examples are a US passport, permanent resident card or an Employment Authorization Document with photo. If an employee presents a valid form of identification and authorization that is on this list, he/she should not be asked for additional documentation.
- List B contains documents that establish identity alone, such as a driver’s license or voter registration card. A document offered from this list must be presented in concert with one from List C.
- List C contains documents that establish employment eligibility alone, such as a Social Security card or birth certificate. A document offered from this list must be presented in concert with one from List B.
The magic behind these lists is simple. Documents from List A have been exhaustively researched enough before issuance to prove that, if authentic of course, either the employee is a citizen and may therefore work, or is a noncitizen, with legitimate identity and work status. Because they cover both identity and work authorization, documents from this list suffice to stand alone for this purpose. The other two lists speak to one or the other—identity or work status—so a combination is necessary to prove the whole.
Examining the Documents
Within three days of the date of the employee’s hire, the employer must physically examine his/her document or appropriate combination of documents, enter the required information and sign his/her I-9. Your signature is an attestation under penalty of perjury that his/her documents “appear to be genuine and relate to the person presenting them.” That sounds serious, and it is. Your administering personnel should understand that failure to authenticate these documents properly then signing the I-9 is the same as lying in a federal court of law, subject to the same penalties. This should get their attention and impress upon them the personal responsibility they undertake on the company’s behalf, which should help protect both you and them by inspiring diligence.
The important consideration here is whether the documents presented look genuine and represent the employee presenting them. Immigration and Customs Enforcement will ding you for individual mistakes in an audit, but the agency is really trying to stop employers from a pattern of illegal hiring. Unless the documents have glaring defects, a reasonableness standard is not a difficult one to meet.
But what should you do when you reasonably see a problem with a document? Here are a few scenarios with some helpful tips:
- If the document doesn’t seem genuine or relate to the new hire, reject it and request another from the same list. The standard won’t change with the next document, it must merely seem reasonably genuine.
- If the new hire writes more than one last name in Section 1, but the documents only have one of them, ask him/her about the difference, and if the explanation and the documents appear to be legitimate, you may accept them. Just be sure to attach a memo to his/her I-9 for the file, noting the discrepancy.
- If the name spellings are slightly different, request an explanation and more forward if it all seems legitimate. Ask the employee to use his/her full legal name in Section 1 and have him/her either correct and initial the I-9, provide a different document with the correct spelling or provide a corrected document.
- If the names on the form and documents are substantially different, ask about the reason. If you are satisfied that it all seems legitimate, attach a memo to his/her I-9 describing the discrepancy. If he/she voluntarily provides proof of a name change, you may keep a copy of the proof with the memo.
- If his/her documents do not appear to be genuine and/or do not seem to relate to the employee and he/she cannot present other documents that satisfy I-9 requirements, you may terminate employment.