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HOME > ARTICLES > WAGE HOUR LAWS > RIGHT TO WORK IN THE U.S.

Payroll Articles
Right to Work in the U.S.

Once an employer hires a worker as an Employee, the Employee must prove his or her identity and right to work in the United States. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to hire an unauthorized worker.33 Employers must comply with this requirement by verifying the identity and right to work of all Employees hired after November 6, 1986.

Employers will not be penalized under IRCA if they have acted in good faith, even though they may have employed an unauthorized worker after accepting a fraudulent document offered as proof of the right to work. Employers can protect themselves by having Employees fill out Section 1 of Form I-9, Employment Eligibility Verification

Making sure Employees provide original documentary evidence of their identity and eligibility to work within 3 business days of the date of hire;

Making sure the documents establishing the Employee.s identity and eligibility to work appear genuine within 3 business days of the date of hire;

Properly completing the employer.s portion of Form I-9 (Section 2) within 3 business days of the date of hire;

Keeping completed I-9 forms for at least 3 years from the date of hire or 1 year from the date of termination, whichever is longer; and

Presenting Form I-9 on request to an inspector from the Bureau of Citizenship and Immigration Services or the Department of Labor.

INS becomes BCIS. On March 1, 2003, the employment eligibility-related functions of the Immigration and Naturalization Service (INS) transitioned to the Bureau of Citizenship and Immigration Services (BCIS), an agency that is part of the Department of Homeland Security. Employers deal with BCIS on employment eligibility issues in the same way they dealt with INS. The new Internet Web site for BCIS is www.uscis.gov.

Documents prove identity and/or work authorization. All newly hired Employees must show evidence of their identity and right to work in the U.S. They can do this by presenting any of a number of documents listed on Form I-9 (one from List A or one each from List B and List C)

List A.Documents proving both identity and work authorization

  1. U.S. passport (expired or unexpired);
  2. Certificate of U.S. Citizenship, BCIS Form N-560 or N-561;
  3. Certificate of Naturalization, BCIS Form N-550 or N-570;
  4. Unexpired foreign passport with:
    a. a stamp reading .processed for I-551. Temporary Evidence of Lawful Admission for permanent residence. Valid until ____ Employment Authorized.; or
    b. an attached Form I-94 with the same name as the passport and an employment authorization stamp with an unexpired endorsement;
  5. Alien Registration Receipt Card or Permanent Resident Card (Green Card).BCIS Form I-551, that contains a photograph, fingerprint, and signature of the bearer (the name was changed from Alien Registration Receipt Card to Permanent Resident Card by regulation in 1998);
  6. Unexpired Temporary Resident Card, BCIS Form I-688;
  7. Unexpired Employment Authorization Document, BCIS Form I-688A;
  8. Unexpired Reentry Permit, BCIS Form I-327;
  9. Unexpired Refugee Travel Document, BCIS Form I-571;
  10. Unexpired Employment Authorization Document with a photograph, BCIS Form I-688B; Form I-766.

List B.Documents Proving Identity Only

  1. State-issued driver.s license or ID card with a photograph or identifying information including name, date of birth,
  2. ID card issued by federal, state, or local government agency or entity with a photograph or identifying information in No. 1.
  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. Canadian driver's license;
  10. For persons under age 18:
    a. school record or report card;
    b. clinic, doctor, or hospital record;
    c. day care or nursery school record.

List C.Documents Proving Work Authorization Only

  1. U.S. Social Security card, if it does not say the card is not valid for employment;
  2. Certification of Birth Abroad, Form FS-545 or Form DS-1350;
  3. Original or certified copy of a birth certificate with an official seal issued by a state or local government agency;
  4. Native American tribal document;
  5. U.S. Citizen ID Card, Form I-197;
  6. ID Card for Use of Resident Citizen in the U.S., Form I-179;
  7. Unexpired authorization document issued by BCIS (other than those in List A).

Documentation changes still pending. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 reduced the number of documents that BCIS must accept as proof of eligibility to work in the U.S., and set September 30, 1997 as the deadline for regulations implementing those changes to be issued. On that day, an interim rule removed documents 2, 3, 8 and 9 from List A and narrowed the instances when document 4 would be acceptable.35 At the same time, however, the agencye said it would not penalize employers for relying on existing guidance and procedures until a final regulation incorporating document reduction is issued and a new Form I-9 is printed and distributed. Within a week, Public Law 105-54 was enacted extending the deadline for issuing regulations to March 30, 1998. On February 2, 1998, proposed regulations were issued that would implement a significant reduc tion in the types of documents that Employees could offer to prove their identity and work authorization, as well as make other changes. Those proposed rules have not yet been finalized. Under the proposal,

List A documents establishing both identity and employment eligibility include:

List B documents establishing identity only would include:

List C documents establishing employment eligibility only would include:

Other proposed changes include:

Revised Form I-9. The proposal includes a revised version of Form I-9 that includes the lists of acceptable documents on the form itself rather than on a separate page, with check boxes next to them to indicate which ones are being offered as proof of identity and employment eligibility.

Time for completing Form I-9. Employers would specifically be allowed to complete the Form I-9 before an Employee.s hire date but after the Employee has accepted an employment offer, so long as the employer follows the same procedure for all Employees.

New reverification form. A new Form I-9A, Employment Eligibility Reverification, has been proposed for use where an Employee.s work authorization is expiring. Currently, reverification is accomplished on Form I-9. The new form would provide room for two reverifications. The proposal clarifies that reverification does not apply to U.S. citizens or nationals or lawful permanent residents.

Receipt process clarified. An interim rule clarifies that there are 3 instances when an Employee can offer a receipt for a listed document rather than the document itself.a receipt for an application for a replace- ment document, a temporary I-551 stamp and a photograph of the Employee on a Form I-94, and a refugee admission stamp on a Form I-94.and then provide the actual document at a later date (within 90 days, if a refugee admission stamp is provided). Where a temporary I-551 stamp is presented, the actual document must be provided by the expiration date on the stamp or, if there is none, within 1 year from the date of issue of the I-94.37

USE CURRENT FORM I-9 FOR NOW

INS.s proposed document reductions will not take effect until public comments have been considered, a final rule has been issued, and a new Form I-9 and Form M-274, Handbook for Employers, have been issued. Also, even though the interim rule removing 4 documents from List A took effect March 30, 1998, the agency has said it will not penalize employers that accept them until a final rule has been issued. Therefore, employers should continue to use the current Form I-9 and can accept the documents listed in the form.s instructions until the final rule and a new Form I-9 are issued. Keep up to date on the latest developments with Payroll Currently, APA.s biweekly payroll compliance membership newsletter.

Penalties.

Employers that knowingly hire unauthorized aliens face civil penalties of $250 - $2,000 for each worker hired for a first offense, $2,000 - $5,000 for a second offense, and $3,000 - $10,000 for more than two offenses. Employers that fail to comply with the verification requirements can be fined $100 - $1,000 for each person for whom proper verification was not required. Employers that engage in a pattern and practice of violating the hiring and/or verification requirements face criminal penalties of up to $3,000 and/or six months in jail. Where the verification violation is minor and future compliance is expected, a warning notice explaining the nature of the violation may be issued in lieu of a fine. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, certain minor, unintentional, technical, and procedural violations made during the verification process are not considered compliance failures if the employer makes a good faith attempt to correct them during the 10-day period normally allotted for making corrections after being notified by BCIS. In 1998, proposed rules implementing the good faith exception were issued. The employer must make any corrections to sections 2 or 3 and ensure that the Employee, preparer, or translator make any corrections to section 1. All such corrections must be initialed and dated. The rules also outline situations that would not be considered good faith, such as technical or procedural mistakes committed to avoid verification, making knowingly false corrections, preparing a Form I-9 knowing the form contains false information, and corrections made after receiving previous notices of violations.