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EMPLOYMENT ELIGIBILITY VERIFICATION

The Immigration Reform and Control Act (IRCA) of 1986 added employer sanctions and nondiscrimination provisions to the Immigration and Nationality Act ("INA") at §§ 274A and 274B. Employers must comply with these requirements. Warnings, fines, civil and criminal penalties from Immigration and Customs Enforcement ("ICE"), the Department of Justice Office of Special Counsel ("OSC"), and other government agencies may result if your company is audited and not in compliance.

 

Employment of Unauthorized Foreign Nationals is Unlawful:

The employer sanctions of INA § 274A make it unlawful for employers to:

  • Knowingly hire, recruit, or refer for a fee an unauthorized foreign national.

  • Fail to comply with the Employment Verification System requirement.

  • Continue to employ an unauthorized foreign national once it is known the individual is unauthorized.

 

The timely and accurate completion and maintenance of the Form I-9 for all employees hired to work for pay after November 6, 1986, was established as the employer's proof that it had complied with the Employment Verification System and established the employer's affirmative defense that they had complied with the INA.

 

Discrimination Based upon National Origin or Citizenship is Unlawful:

The nondiscrimination provisions of INA § 274B specifically addresses the treatment of the documentary process of the Form I-9 and define unfair immigration-related employment practices, such as when the employer requests more or different documents than are required, or refuses to accept documents provided that otherwise reasonably appear to be genuine.

It is critical that employers, and the individuals designated to interview, hire, and onboard employees on their behalf, comply with the employer sanctions and nondiscrimination provisions of the INA. Each individual who performs interviews or is involved with the employee onboarding process should be aware of the Form I-9 Rules and Regulations.

 

I-9 Compliance Starts Before You Hire:

 

  • Employers may not restrict the hiring of qualified, work-authorized individuals to U.S. citizens unless required to do so by other law, regulation, executive order, or government contract.

  • Employers may ask a job applicant if they are authorized to work in the U.S. during the interview process. However, they may not ask for proof of U.S. work authorization during the interview.

  • Employers may not use the Form I-9 to make hiring decisions. The Form may be completed before work-for-pay begins, but it must only be completed after the offer of employment has been accepted.

  • Employers must apply the same process for all employees. If you complete the Form I-9 after offer acceptance, but before the start date, do this for ALL employees, not just foreign nationals.

 

Onboarding Timing and Documentation:

  • The employee must complete Section 1 on or before their first day of work for pay. If the employer or other individual translates for the employee, they must complete the "Preparer/Translator" section.

  • The employer must complete Section 2 by the third day following the employee's start date (Thursday, if work starts on Monday).

  • Do not delay an employee's start date until they obtain documents that are necessary to complete the Form I-9 (or enter case into E-Verify). Employees have three business days from the start date to produce these documents for Section 2. Newly arrived, work-authorized foreign nationals may have to wait a number of weeks to receive their social security card. For employers participating in E-Verify, the social security number is required to enter a case into E-Verify. However, the social security number is not required to complete the Form I-9. Employers may not delay the start date of otherwise work-authorized individuals until the social security card is issued.

  • Do not request specific documentation (i.e. don't ask a Lawful Permanent Resident for their green card, but also, don't simply tell employees to bring their driver's license and social security card, regardless of citizenship). Never accept more documentation than is required to complete the Form I-9.

  • Do not try to be a "document expert." If the documents reasonably appear to be valid and relate to the employee, you must accept them.

  • Do not file the Form I-9 with other personnel/performance records (to help ensure that citizenship is not considered when job actions are considered as well as to facilitate audits).

 

Top Tips for Employers Completing the Form I-9:

  • Review Section 1 for completeness . Have the employee make any corrections and initial and date those corrections.

  • Social Security Number, e-mail, and telephone number are OPTIONAL fields. (Social Security is only required for E-Verify participating employers).

  • Only physical address may be used for the form: No P.O. boxes

  • Be sure that the employee signed and correctly dated the form. (A frequent error is to date the form with their birth date).

  • Don't forget to write the employee's name in the space provided at the top of the Section 2 page of the form.

  • Be sure to enter documentation information under the correct list. List A documents, or sets of documents, establish both identity and work authorization, List B is for identity documents only and List C establishes work authorization only.

  • If the employee shows you a List A document (or set of documents, such as a foreign passport and their unexpired I-94 Admission Form), do not also accept any additional documentation.

  • If you are presented with a List B document, the employee must also provide a List C document and vice versa.

  • Be sure to SIGN AND DATE the Form.

E-Verify Participating Employers:

  • Be sure to write the transmission number at the top of the Section 1 page of the Form I-9, or attach a copy of the transmission confirmation with the Form.

  • The Case Number is required as the document number for Employment Authorization Cards as well as Permanent Resident Cards for entry into E-Verify. However, the case number is located within the data lines of the Permanent Resident Card and is not required as the document number for purposes of the Form I-9.

  • Be sure to include copies of photo-matching documents with the Form I-9.*

  • The E-Verify Case must be entered by the third day following the employee's start date. If the employee is a newly arrived foreign national who is still waiting for their social security number, set this form aside until the number is received, then enter using the reason code for the late entry provided by the E-Verify system.

  • While e-mail address and phone number are optional fields for the employee, if the employee provides this information, an E-Verify participating employer MUST enter this information into E-Verify.

  • Notices of Tentative Non-Confirmation ("TNC") must be provided to the employee within 24 hours.

  • The employee has eight business days to contact the Social Security Administration or Department of Homeland Security (as instructed) to resolve a TNC.

  • The employee may work during the resolution period (until resolution with SSA, OHS, or until Final Non Confirmation ("FNC") is received.)

  • Employers may terminate an employee after receipt of an FNC. However, if the employer knows the employee is work-authorized (i.e., they have sponsored the work authorization or otherwise have all appropriate documentation), they should contact their immigration attorney before determining next steps.

 

*Development of processes to ensure compliance with these requirements must be incorporated into any online I-9 document system.

More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.

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