We are often asked how employers are to verify that their employees are legally allowed to work in the US, can they rely on the employee's word or a copy of a social security card, what are the ramifications if those rules are ignored. This E-tip addresses exactly what you need to do to verify that your employees are eligible to work in the US and when the E-Verify system must be used.
Form I-9
Employers must verify their employees' eligibility by completing the USCIS form I-9, Employment Eligibility Verification. Some employers must use of E-Verify in addition to completing form I-9, see below for a list of employers required to use the E-Verify system.
Who must be verified?
Employers and referral agencies are required by the law to verify the right of each of their employees to work in the United States, to attest that they have seen documentary proof of this right and to maintain records of such attestation. Both permanent and temporary employees need to be verified. Those who are hired for casual domestic work in a private home, not on a regular basis, do not require verification.
Employee leasing: employers are responsible to verify employee work eligibility even if they lease some or all of their employees and should independently verify their employees to provide a defense against sanctions.
Referrals: Employers must make sure they verify referrals from employment agencies even though employment agencies are required to verify on their own. The law provides an exception to this rule when the referral agency is a state employment agency.
Unions: Unions are not required to verify the person they refer, so be sure to verify all referrals from union hiring halls.
Independent contractors: or other individuals providing labor by a contractor do not need to complete the I-9 either. However, if an employer has knowledge that an independent contractor is not authorized to work in the United States, they are not allowed to use their services.
Completing form I-9
By the first day of employment, all new hired employees must complete section 1 of the form I-9 to verify their identity, and sign that they are legally allowed to work in the United States. The employer is responsible for ensuring that section 1 is timely and properly completed. It is not mandatory that the employee provides their social security number on the I-9, unless the employer also uses the E-verify system,
Within three business days of employment, the employer must verify if the employee is legally allowed to work in the United States by completing section 2 of the form. This section asks employers to examine certain documents that would establish both the employee's identity, and their authorization to work in the United States. Some documents can confirm both identity, and authorization simultaneously, and some documents can support either identity or authorization. The employer must then sign and certify under penalty of perjury in section 3 of the form that the documents appear to be genuine and relate to the employee named. While employees must present original documents, employer are not required to photocopy or keep copies of the documents. However, if photocopies are made, they must be made for all new hires.
Check the I-9 itself for a complete list of acceptable documents. Employers must accept any document or combination of documents listed on the form and employers many not request any documents other than those showing identity and work authorization listed on the form I-9.
Judging documents' authenticity. Employers are not expected to ascertain the legitimacy of documents presented during the verification process. They need only verify that each document examined appeared on its face to be genuine and that they relied on it in good faith. Employer determinations of the authenticity of documentation will be judged on a "reasonable man'' basis (i.e., could the average person reasonably believe that the document is authentic).
No policing duty: If an applicant for employment or for employment referral cannot or will not produce identity or employment authorization cards, it is unlawful to hire or refer the individual. However, nothing in the law requires the employer or referral agency to alert immigration authorities or other agencies as to the individual's possible status as an illegal or unauthorized alien.
Do I Need to File the I-9 with the government?
No, the employer does not need to file form I-9 with any government agency, but must keep the form in their records for three years during employment, or one year after employment is terminated, whichever is later. These records must be readily available for request by authorized United State Government officials.
I-9 Audits & Penalties
Audits on employer I-9 completion and retention is typically done by the United States Immigration and Customs Enforcement (ICE). In an effort to crack down on the hiring of illegal workers, I-9 audits have been on the rise in recent years; in 2010 ICE conducted over 2,200 I-9 audits. These audits resulted in fines of more than $50 million and criminal charges for 180 business leaders in 2010.
Knowingly hiring illegal employees is a serious crime, and employers can be fined up to $3,200 per unauthorized alien for the first offense, up to $6,500 per unauthorized alien for the second offense, and up to $16,000 per unauthorized alien for each offense after that. The fines for discriminating against employees are the same. There are also penalties for not completing the I-9 form correctly. Employers can be fined up to $1,100 for each I-9 form that is not properly filled out, retained, or made available for inspection.
E-Verify
E-Verify is an online U.S. Government database that allows employers to instantly verify their employees' employment eligibility. Enrollment is voluntary in most states and is free, simply by signing up through the USCIS website. Once an employer enrolls in E-Verify they must use it to verify all employees, and cannot selectively use the service for certain employees. The I-9 form must still be completed by E-Verify participants in the same manner as businesses that do not use E-Verify. Participation is not permanent, and employers can request to terminate their participation in the E-Verify after they have enrolled.
Enrollment is mandatory for contractors doing business with the federal government and the following states currently require mandatory enrollment for all or some employers: Alaska (eff. 4/1/12), Arizona, Georgia, Indiana (public employers), Louisiana (eff. 8/15/11), Mississippi, Nebraska (public employees), North Carolina (eff. 10/1/11), South Carolina (eff. 1/1/12), Tennessee, Utah (15+ employees), Virginia (public employees)
Form I-9
Employers must verify their employees' eligibility by completing the USCIS form I-9, Employment Eligibility Verification. Some employers must use of E-Verify in addition to completing form I-9, see below for a list of employers required to use the E-Verify system.
Who must be verified?
Employers and referral agencies are required by the law to verify the right of each of their employees to work in the United States, to attest that they have seen documentary proof of this right and to maintain records of such attestation. Both permanent and temporary employees need to be verified. Those who are hired for casual domestic work in a private home, not on a regular basis, do not require verification.
Employee leasing: employers are responsible to verify employee work eligibility even if they lease some or all of their employees and should independently verify their employees to provide a defense against sanctions.
Referrals: Employers must make sure they verify referrals from employment agencies even though employment agencies are required to verify on their own. The law provides an exception to this rule when the referral agency is a state employment agency.
Unions: Unions are not required to verify the person they refer, so be sure to verify all referrals from union hiring halls.
Independent contractors: or other individuals providing labor by a contractor do not need to complete the I-9 either. However, if an employer has knowledge that an independent contractor is not authorized to work in the United States, they are not allowed to use their services.
Completing form I-9
By the first day of employment, all new hired employees must complete section 1 of the form I-9 to verify their identity, and sign that they are legally allowed to work in the United States. The employer is responsible for ensuring that section 1 is timely and properly completed. It is not mandatory that the employee provides their social security number on the I-9, unless the employer also uses the E-verify system,
Within three business days of employment, the employer must verify if the employee is legally allowed to work in the United States by completing section 2 of the form. This section asks employers to examine certain documents that would establish both the employee's identity, and their authorization to work in the United States. Some documents can confirm both identity, and authorization simultaneously, and some documents can support either identity or authorization. The employer must then sign and certify under penalty of perjury in section 3 of the form that the documents appear to be genuine and relate to the employee named. While employees must present original documents, employer are not required to photocopy or keep copies of the documents. However, if photocopies are made, they must be made for all new hires.
Check the I-9 itself for a complete list of acceptable documents. Employers must accept any document or combination of documents listed on the form and employers many not request any documents other than those showing identity and work authorization listed on the form I-9.
Judging documents' authenticity. Employers are not expected to ascertain the legitimacy of documents presented during the verification process. They need only verify that each document examined appeared on its face to be genuine and that they relied on it in good faith. Employer determinations of the authenticity of documentation will be judged on a "reasonable man'' basis (i.e., could the average person reasonably believe that the document is authentic).
No policing duty: If an applicant for employment or for employment referral cannot or will not produce identity or employment authorization cards, it is unlawful to hire or refer the individual. However, nothing in the law requires the employer or referral agency to alert immigration authorities or other agencies as to the individual's possible status as an illegal or unauthorized alien.
Do I Need to File the I-9 with the government?
No, the employer does not need to file form I-9 with any government agency, but must keep the form in their records for three years during employment, or one year after employment is terminated, whichever is later. These records must be readily available for request by authorized United State Government officials.
I-9 Audits & Penalties
Audits on employer I-9 completion and retention is typically done by the United States Immigration and Customs Enforcement (ICE). In an effort to crack down on the hiring of illegal workers, I-9 audits have been on the rise in recent years; in 2010 ICE conducted over 2,200 I-9 audits. These audits resulted in fines of more than $50 million and criminal charges for 180 business leaders in 2010.
Knowingly hiring illegal employees is a serious crime, and employers can be fined up to $3,200 per unauthorized alien for the first offense, up to $6,500 per unauthorized alien for the second offense, and up to $16,000 per unauthorized alien for each offense after that. The fines for discriminating against employees are the same. There are also penalties for not completing the I-9 form correctly. Employers can be fined up to $1,100 for each I-9 form that is not properly filled out, retained, or made available for inspection.
E-Verify
E-Verify is an online U.S. Government database that allows employers to instantly verify their employees' employment eligibility. Enrollment is voluntary in most states and is free, simply by signing up through the USCIS website. Once an employer enrolls in E-Verify they must use it to verify all employees, and cannot selectively use the service for certain employees. The I-9 form must still be completed by E-Verify participants in the same manner as businesses that do not use E-Verify. Participation is not permanent, and employers can request to terminate their participation in the E-Verify after they have enrolled.
Enrollment is mandatory for contractors doing business with the federal government and the following states currently require mandatory enrollment for all or some employers: Alaska (eff. 4/1/12), Arizona, Georgia, Indiana (public employers), Louisiana (eff. 8/15/11), Mississippi, Nebraska (public employees), North Carolina (eff. 10/1/11), South Carolina (eff. 1/1/12), Tennessee, Utah (15+ employees), Virginia (public employees)
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