Worker Eliigibility – What You Need To Know About Employing Legal Employees

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.
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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.