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Verifying the Legal Status of Your Employees Without Committing Unlawful Discrimination

Did you know that your business must review documentation from each new hire to verify that he or she is eligible to work in the United States? This obligation applies even to small businesses that employ one employee!

Did you also know that employers that verify the employment eligibility of employees in a discriminatory manner are subject to discrimination complaints, civil penalties, back pay awards, and attorney's fees?

Since 1986, all businesses must verify the employment eligibility of new employees. Although a simple process, some employers make unintentional mistakes, or perform the process in a discriminatory manner. This article will give you helpful real-life tips so that you can employ those workers who will best help your business grow.

After you hire a new employee, you must verify his or her identity and employment eligibility. This is done by completing an Employment Eligibility Verification Form (Form I-9). You can download this form from http://www.uscis.gov/files/form/I-9.pdf.

On the first day of work, the employee must complete section 1 of the form, in which he or she certifies employment eligibility by checking whether he or she is a U.S. citizen, noncitizen national, lawful permanent resident, or an alien otherwise authorized to work in the United States. Although the employee must complete and sign section 1, it is your responsibility to ensure that section 1 is completed before the end of the employee's first work day. (If an employee is unable to complete section 1 on his or her own, it may be prepared by another person who must sign the preparer/translator certification.)

On or before the third day of work, the employee must present documentation evidencing his or her identity and eligibility for employment in the United States. The employee must present either one document from list A of the Form I-9 (establishing both identity and employment eligibility), or one document from list B (establishing identity) and one document from list C (establishing employment eligibility). There are special rules for receipts, and some acceptable documents are not listed on the Form I-9; call the Office of Special Counsel employer hotline (toll free) for more information.

You must then complete and sign section 2 of the Form I-9 certifying that the documentation appears genuine on its face, and reasonably relates to the person presenting it. The Form I-9 must be retained for three years after the date of hire, or one year after the date employment ends, whichever is later. It's that simple!

Failure to complete and retain the Form I-9, or knowingly hiring unauthorized workers, violates the immigration laws of the United States, and can lead to prosecution and civil penalties. However, you must take care not to discriminate against new employees by limiting the choice of acceptable documents, rejecting documents that reasonably appear to be genuine, or by treating individuals differently based upon their national origin, or citizenship or immigration status.

Here are some simple tips to help guide you through the process.

  • Provide your new employee with the Form I-9, including the instructions.
  • Require your new employee to complete and sign Section 1 on the first day of work.
  • Show your new employees the lists of acceptable documents on the back of the Form I-9.
  • Give your employee the choice of what documentation to present.
  • Accept documents that reasonably appear to be genuine and to relate to the employee. You are neither required nor expected to be a document expert.
  • Complete and sign section 2 of the form, and retain it for the appropriate time period.
  • Treat all employees equally; do not limit the choice of acceptable documents for non-citizens, or individuals who may appear or sound "foreign." Non-citizens may present a driver's license and ‘unrestricted' Social Security card to establish their identity and employment eligibility.
  • Do not institute a U.S. citizens-only hiring policy or U.S. citizens and green card (or lawful permanent resident) hiring policy unless otherwise required in order to comply with law, regulation, executive order, or government contract. There are many types of immigrants who are legally eligible to work in the United States, including refugees and asylees.

For more information about avoiding discriminatory practices, call the Office of Special Counsel Employer Hotline at 1-800-255-8155. For more information about the lists of acceptable documents, visit http://www.uscis.gov/files/nativedocuments/m-274.pdf.

Updated August 6, 2015

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