Independent Audit for Completion and Maintenance of Employment Eligibility Verification

Forms (I-9)

We will conduct audits to verify your Employment Eligibility Verification system is in compliance with the Department of Homeland Security requirements in order prevent liability and sanctions.

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the identify and maintain auditable records of their employees to prove they what hired personnel who have the authority to work.  The IRCA requires the employer to complete a Form I-9 on all employees and maintain records. Failure eto maintain records can result in monetary penalties to the employer.

Employers are warned that excessive acts could be considered discrimination against the potential employee.

Questions and Answers

Q - If an employer believes a new hire is an alien, can s/he ask the person to produce a Green Card when filling out the I-9 Form?
A - NO. As the I-9 From (rev. 11-21-91) states, "Employers CANNOT specify which document(s) they will accept from an employee." This statement is repeated in the instructions accompanying the I-9 Form (OMB No. 1115-0136).

Q - When filling out the I-9 Form, can an employer accept a social security card from an alien as proof of work authorization?
A - If the Social Security Card does NOT have a statement that it is not valid for employment purposes, it should be accepted as proof of work authorization. Such an unrestricted Social Security card is clearly listed as a document that establishes employment eligibility on the back of the I-9 Form. According to the Social Security Administration they issue the following cards:

1. The card most people have shows only your name and Social Security number and lets you work without restriction. We issue it to:
to U.S. citizens or people lawfully admitted to the U.S. with permanent Immigration and Nationalization Service (INS) work authorization
.
2. The second card bears the legend, "NOT VALID FOR EMPLOYMENT." We issue it to people: from other countries lawfully admitted to the U.S. without work authorization from the INS; and who need a number because of a federal law requiring a Social Security number to get a benefit or service.

3. The third type of card bears the legend, "VALID FOR WORK ONLY WITH INS AUTHORIZATION." We issue it to people: lawfully admitted to the U.S. on a temporary basis; and with INS authorization to work.

Q - What are the legally acceptable documents that a new hire can show for I-9 purposes to establish identify and authorization to work in the United States?
A - The following is the I-9 list of acceptable documents:

List A

Documents that establish both identity and employment eligibility.

1. U.S. Passport (unexpired or expired)
2. Certificate of U.S. Citizenship (INS Form N-560 or N-561)
3. Certificate of Naturalization (INS Form N-550 or N-570)
4. Unexpired foreign passport, with I-551 stamp or attached INS Form I-94
indicating unexpired employment authorization
5. Alien Registration Receipt Card with photograph (INS Form I-151) or
I-551).
6. Unexpired Temporary Resident Card (INS Form I-688)
7. Unexpired Employment Authorization Card (INS Form I-688A)
8. Unexpired Reentry Permit (INS Form I-327)
9. Unexpired Refugee Travel Document (INS Form I-571)
10. Unexpired Employment Authorization Document issued by the INS which
contains a photograph (INS Form I-688B)

OR

List B

Documents that establish identity

1. Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address.
2. ID card issued by federal, state or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address
3. School ID card with a photograph
4. Voter's registration card
5. U.S. Military card or draft record
6. Military dependent's ID card
7. U.S. Coast Guard Merchant Mariner Card
8. Native American tribal document
9. Driver's license issued by a Canadian government authority
For persons under age 18 who are unable to present a document listed above:
10. School record or report card
11. Clinic, doctor, or hospital record
12. Day-care or nursery school record

AND
List C

Documents that establish employment eligibility

1. U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment)

2. Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350)

3. Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal.
4. Native American tribal document.
5. U.S. Citizen ID Card (INS Form I-197) .
6. ID Card for use of Resident Citizen in the United States (INS Form I-179).
7. Unexpired employment authorization document issued by the INS (other than those listed under List A)

Q - Can an employer accept an expired driver's license to establish a new hire's identity for I-9 purposes?

A - Yes. However, a driver's license can only be used to establish a new hire's identity for I-9 purposes (Not authorization to work). It is one of a number of documents, called List B documents, that only establish identity for I-9 purposes.

Q - Can an employer accept an expired United States passport to establish a new hire's identity and authorization to work?
A - Yes. An expired United States passport establishes both who the holder is, i.e., their identity, and that they are a United States citizen and therefore authorized to work in the United States. The INS Handbook for Employers states on page 14: "You may accept an expired United States Passport [for I-9 purposes]." This means that there is no reason to reverify the I-9 Form when the passport expires.

Q - May an employer copy documents presented for I-9 purposes?
A - The law does not require nor prohibit the copying of documents presented for I-9 purposes. As the INS Handbook for Employers states on page 15:

"The law does not require you [an employer] to photocopy documents. However, if you wish to make photocopies, you should do so for all employees, and you should retain the photocopy with the I-9 [there is a different rule for employees of the Federal government concerning where such photocopies should be retained]. Photocopies must not be used for any other purpose."

Note: if an employer chooses to photocopy documents presented, it is important that s/he photocopy the documents of all new hires, not just those s/he may think are aliens. To do otherwise, may subject an employer to a charge of unfair immigration related employment practices.


Q - How long must an employer retain an employee's I-9 form?
A - The INS Handbook for Employers at page 16 states:

"If you are an employer, you must retain the I-9 for 3 years after the date employment begins or 1 year after the date the person's employment is terminated, whichever is later. If you are an agricultural association, agricultural employer, or farm labor contractor, you must retain the I-9 for 3 years after the date employment begins for persons you recruit or refer for a fee."

This means for nonagricultural employers, you should retain I-9s for all current employees for as long as they are employed AND continue to maintain them for a year after they are terminated. However, if an employee leaves before they have been with the employer for 3 years, the employer must maintain the I-9 for longer than 1 year from the date employment is terminated. So if an employee leaves after 1 year, the employer must maintain that employee's I-9 for 2 years after they are terminated. If the employer only maintained this employee's I-9 for 1 year after termination, s/he would have only maintained it for 2 years, which is contrary to the Handbook's "whichever is later" guidance. While the Handbook's guidance is not a model of clarity, it appears to say that all I-9 forms have to be maintained for a minimum of 3 years. Note this causes confusion only for employees who leave an employer before completing 3 years of service. For employees who leave after 3 or more years of service, an employer must retain I-9 forms for 1 year after an employee leaves his/her employ.

Q - Why must United States citizens fill out I-9 forms?
A - The I-9 form is designed to determine who is authorized to work in the United States. It's purpose is not to determine who is and is not a citizen. While all citizens are authorized to work here, it is not always easy to recognize who is and is not a citizen. We are a diverse people drawing our heritage from every country on the planet. There is no stereotype for what an American citizen looks or sounds like. Citizens look and sound like every person on earth. That is America's strength. It is because of this strength that employers cannot simply look at new hires and conclude, "you I need to do an I-9 for, and you I do not." For this process to have a chance of working, everyone has to have one done.