- Laws relevant to verifying authorization to work
- Employers’ responsibilities
- Duty to complete a Form I-9
- Duty to ensure Form I-9 information is correct and updated
- Duty to require submission of relevant documents
- Duty to inspect submitted documents
- Duty to retain copies of Form I-9 and submitted documents
- Duty to terminate employees who fail to prove their authorization to work
- Duty to keep in their employment only those authorized to work
- Duty to protect employees from discrimination
- Types of employees required to fill a Form I-9
- Applicants for a job not required to fill a Form I-9
- Non-citizens who are authorized to work in the US
- Information required of employees in Form I-9
- Acceptable documents
- When an employee has lost the documents that prove their employment authorization
- When an employment authorization document has expired
- Reverification process
- Participation in E-Verify
- Steps in E-Verify
- Contesting Results from E-Verify
- Kinds of violations employers can be charged with
- Process of Immigration Audit and Inspection of Employers
- Penalties for violations of the verification process
It is illegal for employers to:
- Recruit employees or refer them for a fee when they are unauthorized to work in the US;
- Knowingly hire or continue to hire aliens who are illegal to work in the US; or
- Hire an individual without completing a Form I-9.
Employers who violate these reporting requirements may be liable to pay civil and criminal penalties or debarred from entering government contracts known as employer sanctions.
Laws relevant to verifying authorization to work
The requirement to confirm the work authorization of all employees required by the Immigration Reform and Control Act of 1986, which amended 274A of the Immigration and Nationality Act (INA).
This law focused on identifying and penalizing employers who knowingly hire unauthorized aliens or those who continue to employ unauthorized aliens. The Form I-9 verification process further modified by the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Duty to complete a Form I-9
Each employer is required to make all newly hired employee to complete a Form I-9 or create a case in E-Verify. Even employees who are citizens of the US are required to complete a Form I-9.
Duty to ensure Form I-9 information is correct and updated
Employers must enter correctly all required data in a Form I-9. Errors can be corrected by drawing a line (a strikethrough) the incorrect information and enter the correct information.
The employer or authorized representative who made the corrections must initial and date the correction. Employers are also required to update information on Form I-9 when:
- Employees change their names (i.e., marriage or divorce)
- When their employment authorization document (EAD) expired but has renewed.
Duty to require submission of relevant documents
The employer must require the employee to submit documents that will confirm their identity and their authorization to work in the US. The employer must require their newly hired employees to submit these documents within three (3) days of their hiring. There are three lists of acceptable documents, and employees may choose which documents to submit to their employer. Employers cannot decide which documents the employee will submit.
Duty to inspect submitted documents
Each employer must check and physically examine the records provided by their employees, in the presence of the employee who sent them, to determine that they are genuine. The employer or their authorized representative who conducted the document inspection must enter on the Form I-9 the document title, issuing authority, number and expiration date of the documents submitted. They must also attest, and sign Section 2 of Form I-9 that they had personally examined and inspected the documents submitted.
Duty to retain copies of Form I-9 and submitted documents
Each employer must retain copies of the Form I-9 of each employee and copies of the documents submitted by the employee as part of their business records. They must return the original documents to their employees and retain only copies of them.
Duty to terminate employees who fail to prove their authorization to work
An employer must terminate an employee:
If the employee fails:
- To submit documents that prove their identity or authorization to work;
- Presents materials that are not genuine, expired, or invalid;
If the employer:
- Enters the employee’s information on E-Verify and there is an indication that the records provided by the employee do not match the records of the Department of Homeland Security or the Department of Labor,
- The employee does not contest the initial non-confirmation of their information.
Employers must notify the Department of Homeland Security (DHS) when an employee receives a Final Non-confirmation of their employment eligibility.
Duty to keep in their employment only those authorized to work
Employers must continue to remain in their employ only US citizens, US lawful permanent residents, and other aliens allowed to work in the US. A US citizen will always be authorized to work. A legal permanent resident is a non-US citizen who resides in the US under legally recognized and lawfully recorded permanent residence as an immigrant.
A refugee or asylee is an individual who is not a citizen or a national of the US or a lawful permanent resident but is authorized to work in the US because of their visa status.
Under certain circumstances, holders of J-1, F-1 or M-1 visas are authorized to work in the US as well.
Duty to protect employees from discrimination
Employers must refrain from unfair documentary practices when conducting the verifying process through the Form I-9 by requesting more documents or different documents than those required under Form I-9. They cannot ask that employees present a particular record, nor can they reject submitted papers that appear to be genuine.
They must not treat groups of individuals differently when verifying employment eligibility, or commit acts of retaliation or intimidation against employees. They cannot limit hiring to US citizens only unless a specific position requires only US citizenship.
Types of employees required to fill a Form I-9
All newly hired employees are required to fill a Form I-9 upon their hiring, whether they are US citizens, US immigrants, refugees, asylees, and all holders of nonimmigrant visas who are qualified to work. All persons hired to perform work or render service in the US in exchange for wages, compensation or any remuneration are required to complete a Form I-9 and present documents to verify their identity and authorization to work.
The following are not required to fill out a Form I-9:
- Casuals who render domestic work in private homes on an irregular or intermittent basis;
- Independent contractors hired by employers;
- Employees of an independent contractor who are appointed by an employer are not required to fill in a Form I-9 for the employer. They will fill a Form I-9 for the independent contractor who hired them, however.
- Employees who are not physically present on US soil are not required to fill in a Form I-9.
Applicants for a job not required to fill a Form I-9
No employer can require applicants for a position who have not yet been hired to submit documents or fill out a Form I-9. It is prohibited to discriminate against applicants for a job based on citizenship, immigration status, and national origin.
It is prohibited to discriminate against an applicant for a position whose employment authorization has a future expiration date. Having a future expiration date on the employment authorization does not mean that they cannot work until the expiration of their employment authorization. It does not mean that their employment authorization will not be extended. Thus, it should not be used to determine an applicant’s qualification for a job, and it constitutes employment discrimination.
Non-citizens who are authorized to work in the US
The following are non-US citizens who are authorized to work in the US:
- Lawful permanent residents who have an Alien Registration Card (Form I-1551) or a permanent resident Card (also called a green card);
- Refugees or asylees will be given employment authorization by the Department of State and the Department of Labor;
- Exchange visitors holding J-1, F-1 or M-1 visas who have been issued a Form DS-2019 may work as part of their exchange program or activity. Instead of an EAD, they may present a Form I-94 or Form I-94A and their Form DS-2019. They must also submit the Form I-20 issued by their school and their unexpired foreign passport.
Information required of employees in Form I-9
On their first day on the job, newly hired employees are required to complete the latest version of a Form I-9 and provide the following information:
- Their full name including their middle initial;
- Maiden name, second name, or hyphenated name;
- Street address including their zip code;
- Date of birth
- Social Security number
- Email address; and
- Telephone number
- US citizenship or US lawful permanent residency or visa status;
- Alien registration number (ARN) or US Commission on Immigration Services Number and expiry date
- Foreign passport number
- Form I-9 accomplishment date
Employers cannot ask a newly hired employee to provide a specific document with their Social Security number on it. Doing so is considered an act of unlawful discrimination.
There are three (3) lists documents (List A, List B, List C) that employers can accept from their employees. Employees may submit any paper from List A or a combination of documents from List B and List C. The following documents are acceptable:
- US Passport
- Permanent Resident Card or Alien Registration Receipt Card
- Foreign passport with a temporary I-551
- Employment Authorization Document
- Driver’s license or ID card issued by a state
- ID issued by federal, state or local government agencies that provide a photograph, name, date of birth, gender, height, eye color, and address
- School ID with photo
- Voter’s registration card
- US military card or draft card
- US Coast Guard Merchant Mariner Card
- Native American tribal document
- Driver’s license issued by the Canadian government authority
- Social Security Account Number Card
- Certification of a report of birth by the US Department of State
- Certified birth certificate issued by a state, county or municipal authority
- US Citizen Identification Card
- Form I-179 issued to US residents
When an employee has lost the documents that prove their employment authorization
When an employee has lost the documents that prove their employment authorization or when the records are destroyed, the employee must apply for a replacement of the lost, stolen, or damaged paper. Once an employee applies for a replacement copy of the document, a receipt will be issued. The employer may accept the receipt for the replacement of the lost, stolen, or damaged paper.
The receipt will be valid for 90 days from issuance. Thus, after 90 days, when the receipt has expired, the employer must ask the employee for the documents and conduct a re-verification process when the replacement document is provided. The employee must present the actual replacement document for the employer to inspect.
When an employment authorization document has expired
When an employee’s employment authorization has expired or when the employment authorization presented by the employee during the verification process is about to expire, the employer cannot automatically terminate the employee. is because the employee may have applied for an extension or a new employment authorization. When this happens, the employer must wait until the employment authorization is extended or renewed.
When the Employment Authorization Document (EAD) has expired or when the extension for the has ended, the employer can demand from the employee proof of current employment authorization. The failure of the employee to provide a current and valid EAD is a valid reason for the employer to terminate the employee or face civil sanctions.
E-Verify is an Internet-based verification system. Once an employee has completed a Form I-9 and submitted documents, an employer may conduct an employment eligibility verification using E-Verify. The employer can enter the information provided by the employee, and E-Verify will cross-check the information with the records of the US Department of Homeland Security (DHS) and the Social Security Administration (SSA).
Participation in E-Verify
Some employees are required to participate in E-Verify. Other employers choose to participate voluntarily. It is recommended for employers to voluntarily participate in E-Verify to ensure that their employees are only those authorized to work in the US. Obtaining a confirmed match means that the employer can keep the employee in their employ as they are allowed to work in the US.
Steps in E-Verify
To participate in E-Verify, the employer must do the following:
- Complete a Form I-9 for each new employee on their first day of work.
- Access E-Verify and create a case in E-Verify.
- Create a case in E-Verify for each employee by uploading or encoding the information provided by the employee in the Form I-9.
- Inform the employee of the results of E-Verify, especially when the result is a Tentative Non-Confirmation of Employment Authorization.
- Inform the employee to contest the Tentative Non-Confirmation result from E-Verify, or they may be terminated from their employment.
- Terminate the employee if the employee refuses to challenge the Tentative Non-Confirmation of Employment Authorization.
- Terminate the employee if, after the employee challenges the Tentative Non-Confirmation of Employment Authorization, E-Verify issues the Final Non-Confirmation of Employment Authorization.
- Inform the Department of Homeland Security when a Final Non-Confirmation of Employment is received for an employee.
Contesting Results from E-Verify
After an employer has entered the employees’ Form I-9 information, E-Verify may indicate that the records of the DHS or SSA do not match. E-Verify will return a Tentative Non-Confirmation. When this happens, the employee must contest the results.
When the employee fails or refuses to contest the results, E-Verify will indicate a Final Non-confirmation. The employer will then be bound by law to terminate the employee.
Kinds of violations employers can be charged with
Generally, employers may be accused of civil or criminal violations. Infringements may be paperwork violations (discrepancies or incorrectly filling in Form I-9) or hiring violations or continuing-to-employ violations. While both civil and criminal offenses may be penalized with fines, a criminal violation may also carry with it the possibility of imprisonment for up to five (5) years, or they may be punished with both fine and imprisonment.
The following are civil violations:
- Knowingly hiring, recruiting or referring for a fee any person unauthorized to work in the US;
- Continuing to employ a person unauthorized to work in the US;
- Failing to comply with Form I-9 verification requirements;
- Committing or participating in document fraud to satisfy the employment verification process;
- Committing document abuse;
- Unlawfully discriminating in hiring, firing or recruiting a person who is authorized to work in the US;
- Failing to notify the DHS of an employee’s Final Non-confirmation of employment eligibility
- Requiring employees to post a bond or security, or to pay an amount, or provide financial guarantee or indemnity against any potential liability arising from employment verification requirements.
- Using E-Verify as a screening tool for applicants to a position (E-Verify can only be used after an applicant has been hired for work).
It is a criminal violation when an employer engages in a pattern or practice of hiring, recruiting, or referring for fee aliens who are not authorized to work in the US.
Process of Immigration Audit and Inspection of Employers
The Immigration and Customs Enforcement (ICE) will review and audit the Form I-9 and the documents submitted by the employers. When ICE performs an initial inspection of these documents, they may issue the following:
Notice of Inspection
This document will indicate that ICE will schedule a time and place for the inspection of all employment eligibility verification forms. They may even attach a list of documents they request. This works as a subpoena or a request for the employer to appear and answer questions that ICE may have regarding the verification process conducted by the employer or the documents submitted by the employer
Notice of Suspect Documents
When the documents submitted do not appear to be valid or genuine.
Notice of Discrepancies
When the papers presented have errors or inconsistencies.
Notice of Technical and Procedural Failures
When the ICE has found that the employer failed to follow the rules of procedure in verifying employment authorization.
Employee Discrepancy Notice
When ICE has found invalid or non-genuine information or documents provided by the employee.
When ICE finds that the discrepancies in the records are minimal, they may simply warn the employer without imposing a penalty.
Notice of Intent to Fine
This is a charging document. It lists all the violations that the employer committed during the documentation process and warns the employer that it may be fined or it may face criminal charges for those violations.
ICE will file with the Office of the Chief Administrative Hearing Officer this document to initiate proceedings against the employer.
Click here for further information on the Form I-9 Inspection Process
Penalties for violations of the verification process
Civil penalties are mostly money penalties or fines. ICE has a formula for determining the amount in fines that the employers will pay. There is a base penalty, or standard fine amount ranges from $548 to greater than $20,000. To this base or standard cost, there will be additional fines based on the number of violations and the number of times that the employer has committed violations.
ICE counts the number of violations and divides this by the total number of employees in the company or workplace to arrive at the percentage of breaches. ICE has published a penalty matrix based on the portion of the violations as against the number of employees. The penalty can be increased further depending on the employer’s business size, the seriousness of the offenses, prior history of violations, good faith, and whether it employed unauthorized aliens.
Click here to view the penalty matrix