What is the Basis for Employment Verification?
In 1986, Congress was debating many of the same questions as in recent years regarding illegal immigration and the best way to gain control of the border. The debated ended with passage by Congress of IRCA and ratification by President Ronald Reagan.
Central to IRCA was a section that created an employer sanctions system that requires all employers in the U.S. to verify the identity and employment authorization of nearly all employees hired since the law was passed in 1986. Employers would basically become a central part of the immigration enforcement process by having to take over responsibility for verifying that the employer’s employees are legally in the country. Shortly after the law passed, the INS created Form I-9 to document that the employer has met its IRCA obligations. Employers are not permitted to knowingly hire unauthorized immigrants and properly completing the Form I-9 is the method for employers to demonstrate they lack knowledge that an employee is not eligible to be employed.
Coupled with the provisions sanctioning employers who fail to verify the employment authorization and identity of its employees are provisions barring certain immigration-related practices by the employer including engaging in discrimination based on citizenship or immigration status or national origin and requiring documentation different from or in addition to what IRCA actually requires (document abuse). Employees are also protected from retaliation when they file a complaint using the anti-discrimination rules.
Which government agency regulates compliance with the employer sanctions rules under IRCA?
While DOJ was responsible for enforcing compliance with IRCA’s employer sanctions rules when IRCA passed, the responsibility was transferred to ICE when DHS was created in 2002.
What is a Form I-9?
The Form I-9 is the one page form employees complete verifying their identity as well as proving they are allowed to work in the United States. The form itself has three parts. Section 1 includes basic biographical information on the employee and also asks the employee to certify that he or she is a citizen, permanent resident, or authorized to work under another status. The second section is completed by an employer who must verify, and attest under penalty of perjury, which documents an employee presented to prove their identity and right to work and that the paperwork was completed in a timely manner. Employees may present items from a List A in the I-9 instructions that prove both identity and authorization to work (such as a U.S. passport) or a combination of an identification document from a List B in the instructions and a document in List C of the instructions that demonstrates employment authorization. The third section is reserved for employers who must periodically update the I-9 Form if the employee is not authorized to permanently work in the United States.
Note: The I-9 was updated in June 2007 and all employers must be using the new form as of December 26, 2007. The form is largely unchanged except for shortening the list of acceptable List A, B, and C documents consistent with changes passed by statute in 1996.
When must the I-9 Form be completed?
The Form I-9 process must start on the day an employee starts work. The employee must complete the first section of the I-9 form on that day and must provide the supporting documents noted above within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the employee rather than terminating the employee all together). While it is possible to require people to complete the I-9 form before the first day of employment, many immigration lawyers caution against this. DHS’ I-9 handbook tells employers that the employee must have been offered and accepted the job and that the form should not be used to screen job applicants lest there be a charge of nationality discrimination. To the extent an employer chooses to have I-9s completed before the date of hire, they should only be requested after a position has been offered and accepted and there should be a uniform policy applicable to all employees receiving an offer of employment having to complete the I-9 ahead of time.
Note that the three day requirement to produce the supporting documents also applies to recruiters and referrers for a fee as well as state employment agencies.
What if an employee is being hired for less than a three day period?
Employees being hired for less than a three day period must complete Section 1 on the day of hire and the employer needs to sign the verification attestation in Section 2 as well on the day of hire. Employees for jobs that are intended to last three days or fewer must therefore present their documents on the day of hire.
In a nutshell, what are an employer’s Form I-9 requirements?
Employers (and others required to retain Form I-9 as described below), have six basic obligations:
- Have employees fully and properly complete Section 1 of the Form I-9 no later than the date employment commences;
- Review the required documents to provide identity and employment authorization to ensure that they are genuine and apply to the person presenting them;
- Properly complete Section 2 of the Form I-9 and sign and date the employer certification;
- Retain the Form I-9 for the required retention period;
- Reverify employment authorization for employees presenting time-limited EADs;
- Make the Forms I-9 available for inspection if requested by DHS, OSC, or DOL.
Are employers the only entities required to verify employment eligibility using Form I-9?
Aside from employers, agricultural associations and farm labor contractors also must complete Forms I-9 for individuals recruited or referred for a fee. The term “refer for a fee” and “recruit for a fee” do not include union halls that refer union members and non-union members.
Recruiters and referrers for a fee are permitted to designate agents to handle the I-9 process including national associations as well as the actual employers of the employees. If the employer is designated to handle the process, the employer must provide the recruiter or referrer with a copy of the I-9 and the recruiter or referrer still is liable for IRCA violations.
Recruiters and referrers subject to the I-9 rules must abide by the timing and recordkeeping requirements described later in this chapter and must make the I-9 forms available to ICE, OSC, or DOL officers. Fines and penalties applicable to employers apply to these recruiters and referrers as well.
Some state employment agencies also certify people they refer to employers. State employment agencies may elect to provide employees with certification of employment authorization and if the agency refers a job to an employer and sends a certification of employment eligibility within 21 days of the referral, the employer does not need to complete a Form I-9. Employers must still check the certification to make sure it refers to the person actually hired and must retain the certification as they would a Form I-9.
State agencies providing this service need to comply with the I-9 employment verification rules. One exception is that individuals may not present receipts for documents as they may in certain cases with I-9s completed by employers.
When a state employment agency wants to refer an individual again after he or she has previously been certified, the state agency can rely on the prior I-9 if the individual remains authorized to be employed and the employee is referred to an employer within three years of completion of the initial I-9. State agencies must retain the I-9 for a period of at least three years from the date the employee was last referred and hired.
What is the employee’s responsibility in completing the Form I-9?
Employees are required to complete Section 1 of the Form I-9 stating the employee’s name, address, SSN, date of birth, and whether the employee is a U.S. citizen or national, lawful permanent resident or an alien with authorization to be employed. If the employee is a permanent resident, he or she must provide an alien number and if the employee is an alien with employment authorization, the employee’s alien or admission number and the expiration date of the employment authorization, if applicable. Employees must also sign the form attesting that the statements and documents are not false.
Employees are also required to present to the employer, recruiter or referrer for a fee, or referring state agency, documentation from the authorized list of documents demonstrating identity and employment authorization.
Are there any employees not required to complete a Form I-9?
IRCA requires all employers have all employees hired after 1986 complete I-9 verification paperwork. The Form I-9 requirement applies to all employees including U.S. citizens and nationals. Employees who are not hired do not need to complete I-9 Forms and employers who selectively choose who will and will not complete I-9s could face penalties under anti-discrimination rules. Volunteers are not subject to I-9 rules since they receive no “remuneration” for their services. Independent contractors are also not subject to the I-9 rules, but employers should note that if they contract work to companies they know use unauthorized employees, they could be held liable as well under IRCA. Persons transferring within a company are not required to complete an I-9 form, but the easiest practice is usually to complete a new I-9 anyway rather than having to document the I-9 was done previously. Employees rehired by a company need not complete a new I-9 as long as they resume work within three years of completing the initial form I-9. Also, it is not necessary to complete a new I-9 after
- an employee completes paid or unpaid leave (such as for illness or a vacation),
- a temporary lay-off,
- a strike or labor dispute,
- gaps between seasonal employee.
What if an employee is a volunteer or paid in ways other than with money? What if an employee receives a signing bonus prior to starting work?
DHS regulations consider a person to be hired for purposes of the employer sanctions rules at the time of the “actual commencement of employment” for “wages or other remuneration.” “Employment” is defined to mean service or labor performed by an employee for an employer.
Based on these definitions, employees who receive a signing bonus but who have not actually begun employment would not be required to complete a Form I-9 until actual work for the employer commenced.
True volunteer positions no pay is received and the employee does not receive any other type of benefit in lieu of pay (such as food and lodging). While it is quite possible Congress did not intend to include positions where a charitable organization has provided meals and lodging to volunteers not receiving any pay for their labor, the rules do not seem to make an exception and the charity should err on the side of completing Form I-9s for the volunteers.
Is a new I-9 required for employees who are transferred within a company?
No. Promoted and transferred employees do not require a new Form I-9.
Do independent contractors need to complete a Form I-9?
No. Employees employed by an independent contractor are to be verified by the contractor. However, ICE has targeted employers when they have been able to demonstrate that the employer deliberately used a contracting firm to circumvent IRCA and knew that the contractor’s employers were not employment authorized.
DHS’ regulations define “independent contractor” to include individuals and entities who control their own work and are subject to control only as it pertains to the results. Employers should note that just because someone is called a contractor and issued a 1099 or an entity is paid which then pays the employee, does not mean that ICE will consider the arrangement to be a contractor relationship as opposed to an employer-employee relationship. The agency will examine the nature of the relationship to determine whether it really should be classified as an employment relationship where employees should be completing the Form I-9.
According to ICE, the following factors are considered in determining if a relationship is a contractor or an employment arrangement:
- who supplies the tools or materials
- whether the contractor makes services available to the general public
- whether the contractor works for a number of clients at the same time
- whether the contractor has an opportunity for profit or loss as a result of the services provided
- who invests in the facilities for work
- who directs the order or sequence in which the work is to be done
- who determines the hours during which the work is to be done
Are domestic service employees (such as housekeepers, kitchen help, and gardeners) required to complete I-9s?
Sometimes. The term “employee” is defined by DHS to exclude those engaged in “casual domestic employment.” “Casual domestic employment” includes individuals who provide domestic service in a private home that is “sporadic, irregular or intermittent.”
In DHS’ M-274 guide for employers specifically notes, however, that “those who employ anyone for domestic work in their private home on a regular basis (such as every week)” are required to have the employee complete a Form I-9.
The M-274 guide is not controlling law in and of itself and is merely interpreting IRCA. One could argue that certain domestic employees who show up every week at a private home are independent contractors meeting the tests described in the regulations.
One way to determine if a domestic service employee is an employee or not is if the IRS would consider an employer obligated to withhold taxes, pay social security, etc. If a tax specialist advises that withholding is required based on the nature of the relationship, then employment verification should occur. Even if this is not the case and even if an employee is paid in cash, it may still make sense to have the employee complete a Form I-9.
Under what circumstances would a returning employee not be required to complete a new Form I-9?
A returning employee does not need to complete a new I-9 in certain instances where he or she is considered to be continuing prior employment. These include
- when an individual is returning from an approve paid or unpaid leave of absence (such as on account of illness, pregnancy, maternity, vacation, study, family leave, union activities or other temporary leave of absence approved by the employer
- when the individual is promoted or demoted or receives significant raise
- when the individual is temporarily laid off for lack of work
- when the individual is out on strike or in a labor dispute
- when the individual is reinstated after a finding of wrongful termination
- when an individual transfers units within the same employer (the I-9 may be transferred to the new unit)
- when there is a merger, acquisition or reorganization and the new employer assumes the Form I-9 responsibilities from the prior employer
- when the employee is engaged in seasonal employment
The employer claiming that the employee is continuing in prior employment must show that the employee expected to resume employment at all times and that the employee’s expectation was reasonable. Factors to be considered include, but are not limited to whether the
- employee was employed on a “regular and substantial basis;”
- individual complied with the employer’s established policies regarding absence;
- employer’s past history of recalling employees indicates a likelihood that the individual will be recalled;
- position has not been taken over by another employee;
- employee has not sought benefits like severance or retirement indicating that the employee would not be resuming work;
- financial condition of the employer indicates an ability to resume employment; and
- history of communications between the employer and employee indicates the intention to resume employment.
Are employees who return to work after a labor dispute required to complete a new Form I-9?
No. DHS regulations specifically state that employees returning after a labor dispute are considered to have been continuously employed.
Are seasonal employees required to re-verify their Form I-9s?
No. DHS regulations consider seasonal employees to be continuously employed.
Are there special rules for employer associations?
Yes. Agricultural associations who refer employees to individual employers are required to complete Form I-9s for employees referred for a fee to employers. The association can assign the task to the employer in certain cases as well as to national associations.
Do employers of part-time employees need to complete I-9s for those employees?
Yes. There is no exemption from the verification requirements because an employee is not full-time unless the employee is considered an independent contractor or the person is engaged in casual, non-regular domestic work in a private home.
Can an employer require job applicants to complete Form I-9s?
No. Employers should not complete Form I-9s for individuals applying for jobs. Only those individuals actually offered employment who have accepted should be requested to complete the Form I-9. See the next section of questions on the timing of completing Form I-9 for those individuals.
What privacy protections are accorded employees when they complete Form I-9?
DHS regulations state that information contained on the Form I-9 may only be used to verify an individual’s identity and employment eligibility and to enforce immigration law. Presumably this bars both the government as well as employers for using I-9 information for any other purposes.
Employers with electronic I-9 systems are also required to implement a records security program that ensures that only authorized personnel have access to electronic records, that such records are backed up, that employees are trained to minimize the risk of records being altered and that whenever a record is created, accessed, viewed, updated, or corrected, a secure and permanent record is created establishing who accessed the record.
Which foreign nationals are always authorized to work in the United States?
In order to determine whether an employee will require sponsorship for a visa from an employer, it helps to know which types of foreign nationals are entitled to work incident to their status in the United States. DHS lists 16 types of cases where a foreign national is entitled to work in the U.S. simply on the basis of their status. Note that with the exception of permanent residents who show their I-551 card, the authorization to work in the other categories is demonstrated by an employment card issued by USCIS:
- Lawful permanent residents (“green card holders”)
- Certain persons processing under the 1986 immigration act (there should be very few people, if any, still in this group)
- Persons admitted as refugees
- Persons admitted as parolees
- Person in asylum status (note that the expiration date on the employment authorization card does not mean the bearer’s work authorization has expired)
- K-1 fiancé visa holders
- N-8 parents and N-9 dependent children processing for permanent residency on the basis of a family member working in the for an international organization
- Certain citizens of the Federated States of Micronesia or the Marshall Islands
- K-3 spouse visa holders
- Individuals granted withholding of deportation or removal for the period they hold that status
- Certain persons granted voluntary departure by virtue of membership in a specific nationality group
- Persons holding Temporary Protected Status for the period of time their country’s nationals are granted that status
- Individuals granted voluntary departure under the Family Unity Program of the 1990 Immigration Act
- Persons granted Family Unity benefits under the LIFE Act
- Persons holding V visa status based on certain family-based green cards filed before 2001
- Persons holding T visa status as victims of trafficking
Which foreign nationals are sometimes authorized to work in the United States?
Certain individuals can live and work in the U.S. based on working for a specific employer and meeting certain conditions. USCIS lists 19 such categories and persons in these categories are authorized to work on the basis of possessing a valid I-94 as opposed to an EAD:
- A-1/A-2 foreign government officials (individuals must work only for the sponsoring foreign government entity)
- A-3 personal employees of A-1 or A-2 visa holders
- C-2/C-3 foreign government officials in transit (individuals must work only for the sponsoring foreign government entity)
- E-1/E-2 treaty investors and traders employed by a qualifying company
- F-1 students working on campus or engaged in curricular practical training (CPT employees must have a properly annotated I-20)
- G-1/G-2/G-3 representatives of international organizations (individuals must work only for the sponsoring foreign government entity or international organization)
- G-5 personal employees of G-1/G-2/G-3 visa holders
- H-1B /H-2A/H-2B/H-3 temporary employees and trainees
- I representatives of foreign media organizations
- J-1 exchange visitors (only within the guidelines set forth in the DS-2019 form)
- L-1 intra-company transfer
- O-1/O-2 aliens having extraordinary ability in the sciences, arts, education, business, or athletics and accompanying aliens.
- P-1/P-2/P-3 athletes, artists or entertainers
- Q-1 international cultural exchange visitors employed by the Q-1 petitioner
- R-1 religious employees
- NATO-1/NATO-2/NATO-3/NATO-4/NATO-5/NATO-6 employees of NATO
- NATO-7 personal employees of NATO employees
- TN professionals from Canada and Mexico working pursuant to the NAFTA treaty
- A-3/E-1/E-2/G-5/H-1B/H-2A/H-2B/H-3/I/J-1/L-1/O-1/O-2/P-1/P-2/P-3/R-1/TN who have expired I-94s but have timely filed for an extension (employment authorization continues for 240 days or until the application is denied).
Note that the E-3 visa for Australians is not included presumably because the category is new and USCIS has not updated 8 CFR §274a.12.
There are also a group of visa categories where an individual can apply for employment authorization and such individuals must have an EAD to work:
- Spouses and unmarried dependent children of A-1 and A-2 visa holders
- F-1 students seeking optional practical training in his or her area of study or because of severe economic hardship (after getting support of school’s international student officer)
- Spouses and unmarried children of G-1, G-3, and G-4 international organization representatives
- J-2 spouses and unmarried minor children of J-1 visa holders
- M-1 student seeking practical training in an area directly related to his or her course of study as recommended by a school official on Form I-20
- Dependents of aliens classified as NATO-1 through NATO-7
- Asylum applicants who have had their cases pending for more than 150 days
- Applicants with a pending adjustment of status to lawful permanent residency application
- Certain applicants with pending suspension of deportation and cancellation of removal cases
- Parolees admitted on public interest or emergency grounds
- B-1 visitors who are personal or domestic servants of certain non-immigrant work visa holders
- Domestic servants of U.S. citizens accompanying or following to join the U.S. citizen who has a permanent home or is stationed in a foreign country and who is temporarily coming to the United States
- Employees of foreign airlines who would otherwise be entitled to E-1 visa status and who is precluded from E-1 status because the person is not of the same nationality as the airline
- Individuals under final orders of removal and who are released on an order of supervision because the person’s home country refuses to accept them (such cases are approved in the discretion of USCIS)
- Temporary Protected Status applicants
- Certain legalization applicants under the 1986 Immigration Act and LIFE Act
- Witnesses or informants in S visa status
- Q-2 Irish peace process cultural and training program visitors
- T-1 victims of trafficking immediate family members