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Employment Verification for Foreign Nationals
The law requires that all US employers hiring any person as an employee verify through prescribed methods the identify of the individual and his authority to work in the United States. Enacted in 1986, the compliance obligations are pervasive in American business, and result in the completion of over 90 million I-9 employment verification forms each year. For employers, the verification and reverification obligations, record keeping requirements, and daily need to make human resources decisions create an on going tension between the need to maintain compliance with immigration laws and the prohibition on unlawful discrimination against foreign workers. The tension is heightened by the legal ambiguities that attend the use of independent contractors and the extent to which a contracting party may be liable for the immigration law violations of contractors where there may be constructive notice.
These are complex issues requiring continuous attention by corporate HR departments and their counsel, as well as a thorough understanding of the applicable regulations. Inasmuch as the maximum penalty for violations tops out at $11,000 per employee, employers are well advised to establish and maintain comprehensive intake procedures and have in place an effective, audited verification system.
Verification Requirements
What follows is a brief overview of the verification requirements:
Employment verification applies to all US employers and all US employees hired after November 6, 1986, other than:
- Employees working outside the US;
- Domestic employees providing sporadic, irregular or intermittent service;
- Alien crewmen;
- independent contractors (provided contracting entity has no knowledge, actual or constructive, that any of contractors' employees are working without authorization;
- True volunteers;
- Persons in the US and lawfully permitted to engage in certain activities while on foreign payrolls;
Employment verification is carried out by the employer requiring the prospective employee to complete USCIS Form I-9 at the time of hiring (i.e., prior to the actual commencement of labor and compensation). The I-9 requires employees to produce certain documents which confirm their identity and right to work in the US. These documents are dictated by statute and may not be expanded, so the employer must maintain proof that these documents and these alone were the basis of verification. If the employee can produce satisfactory originals (no copies) of any of the listed documents that provides proof of both right to work and identity, or one each of documents demonstrating identify and right to work, the employer has no discretion to refuse to accept them as proof. If the employee fails to produce the necessary documents within three days of commencement of employment, or fails to produce a receipt requesting replacement of the original documents, the employer can and usually should fire the employee.
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List A
The list of verification documents establishing both identity and right to work include:
- United States passport (unexpired or expired);
- Alien Registration Receipt Card or Permanent Resident Card, Form I-551;
- An unexpired foreign passport that contains a temporary I-551 stamp;
- An unexpired Employment Authorization Document issued by the USCIS which contains a photograph, Form I-766; Form I-688, Form I-688A, or Form I-688B; or
- an unexpired foreign passport with an Arrival-Departure Record, Form I-94, in which the duration of stay has not been exceed.
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List B
Verification documents of identity only (also requires document verifying right to work):
- A US or Canadian driver's license or identification card containing a photograph or biometric information;
- School identification card with a photograph;
- Voter's registration card;
- U.S. military card or draft record;
- Military dependent's identification card;
- Native American tribal documents;
- United States Coast Guard Merchant Mariner Card;
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List C
Verification documents for establishing work authorization only (also requires document verifying identity):
- Social security card other than one which has printed on its face "not valid for employment purposes";
- A Certification of Birth Abroad issued by the Department of State;
- An original or certified copy of a US birth certificate;
- Native American tribal document;
- United States Citizen Identification Card; or
- An unexpired employment authorization document issued by the USCIS .
Once completed and verified, the employer must retain the I-9 for the duration of the employment relationship plus one year, or for three years after the date of hire, whichever is later.
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