Q- Does an employer have to reverify the employment
eligibility of a worker whose permanent resident card has expired?
A - According to an INS NOTICE TO EMPLOYERS
(Form M-324 - Rev.10-26-89), the answer is NO. It states: "On
August 1, 1989, INS began issuing a revised Resident Alien Card,
Form I-551, to new permanent resident aliens. . . . The I-551
is a List A document . . . because it establishes both identity
and employment eligibility. The card will also contain an expiration
date, making the card valid for 10-years from the date of issuance;
the applicant will then be required to obtain a new card. However,
because employment authorization is unlimited for I-551 holders,
there will be no need to update the I-9."
Q - If an employer
believes a new hire is an alien, can s/he ask the person to
produce a Green Card when filling out the I-9 Form?
A - NO. As the I-9 From (rev. 11-21-91) states,
"Employers CANNOT specify which document(s) they will accept
from an employee." This statement is repeated in the instructions
accompanying the I-9 Form (OMB No. 1115-0136).
Q - When filling out the
I-9 Form, can an employer accept a social security card from
an alien as proof of work authorization?
A - If the Social Security Card does NOT
have a statement that it is not valid for employment purposes,
it should be accepted as proof of work authorization. Such an
unrestricted Social Security card is clearly listed as a document
that establishes employment eligibility on the back of the I-9
Form. According to the Social Security Administration
they issue the following cards:
1. The card most people
have shows only your name and Social Security number and lets
you work without restriction. We issue it to:
to U.S. citizens or people lawfully admitted to the U.S. with
permanent Immigration and Nationalization Service (INS) work
authorization
.
2. The second card bears the legend, "NOT
VALID FOR EMPLOYMENT." We issue it to people: from other
countries lawfully admitted to the U.S. without work authorization
from the INS; and who need a number because of a federal law
requiring a Social Security number to get a benefit or service.
3. The third type of card bears the legend,
"VALID FOR WORK ONLY WITH INS AUTHORIZATION." We issue
it to people: lawfully admitted to the U.S. on a temporary basis;
and with INS authorization to work.
Q - What are the legally
acceptable documents that a new hire can show for I-9 purposes
to establish identify and authorization to work in the United
States?
A - The following is the I-9 list of acceptable
documents:
List A
Documents that establish both identity
and employment eligibility.
1. U.S. Passport (unexpired or expired)
2. Certificate of U.S. Citizenship (INS Form N-560 or N-561)
3. Certificate of Naturalization (INS Form N-550 or N-570)
4. Unexpired foreign passport, with I-551 stamp or attached
INS Form I-94
indicating unexpired employment authorization
5. Alien Registration Receipt Card with photograph (INS Form
I-151) or
I-551).
6. Unexpired Temporary Resident Card (INS Form I-688)
7. Unexpired Employment Authorization Card (INS Form I-688A)
8. Unexpired Reentry Permit (INS Form I-327)
9. Unexpired Refugee Travel Document (INS Form I-571)
10. Unexpired Employment Authorization Document issued by
the INS which
contains a photograph (INS Form I-688B)
OR
List B
Documents that establish identity
1. Driver's license or ID card issued by
a state or outlying possession of the United States provided
it contains a photograph or information such as name, date
of birth, sex, height, eye color, and address.
2. ID card issued by federal, state or local government agencies
or entities provided it contains a photograph or information
such as name, date of birth, sex, height, eye color, and
address
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. Driver's license issued by a Canadian government authority
For persons under age 18 who are unable to present a document
listed above:
10. School record or report card
11. Clinic, doctor, or hospital record
12. Day-care or nursery school record
AND
List C
Documents that establish employment eligibility
1. U.S. social security card issued by the
Social Security Administration (other than a card stating it
is not valid for employment)
2. Certification of Birth Abroad issued by
the Department of State (Form FS-545 or Form DS-1350)
3. Original or certified copy of a birth
certificate issued by a state, county, municipal authority
or outlying possession of the United States bearing an
official seal.
4. Native American tribal document.
5. U.S. Citizen ID Card (INS Form I-197) .
6. ID Card for use of Resident Citizen in the United States
(INS Form I-179).
7. Unexpired employment authorization document issued by the
INS (other than those listed under List A)
Q - Can an employer accept an expired driver's
license to establish a new hire's identity for I-9 purposes?
A - Yes. However, a driver's license can only
be used to establish a new hire's identity for I-9 purposes
(Not authorization to work). It is one of a number of documents,
called List B documents, that only establish identity for I-9
purposes.
Q - Can an employer accept
an expired United States passport to establish a new hire's
identity and authorization to work?
A - Yes. An expired United States passport
establishes both who the holder is, i.e., their identity, and
that they are a United States citizen and therefore authorized
to work in the United States. The INS Handbook for Employers
states on page 14: "You may accept an expired United States
Passport [for I-9 purposes]." This means that there is
no reason to reverify the I-9 Form when the passport expires.
Q - May an employer copy documents
presented for I-9 purposes?
A - The law does not require nor prohibit the copying of documents
presented for I-9 purposes. As the INS Handbook for Employers
states on page 15:
"The law does not require you [an employer] to photocopy
documents. However, if you wish to make photocopies, you should
do so for all employees, and you should retain the photocopy
with the I-9 [there is a different rule for employees of the
Federal government concerning where such photocopies should
be retained]. Photocopies must not be used for any other purpose."
Note: if an employer chooses to photocopy documents
presented, it is important that s/he photocopy the documents
of all new hires, not just those s/he may think are aliens.
To do otherwise, may subject an employer to a charge of unfair
immigration related employment practices.
Q - How long must an employer
retain an employee's I-9 form?
A - The INS Handbook for Employers at page
16 states:
"If you are an employer, you must retain the I-9 for
3 years after the date employment begins or 1 year after the
date the person's employment is terminated, whichever is later.
If you are an agricultural association, agricultural employer,
or farm labor contractor, you must retain the I-9 for 3 years
after the date employment begins for persons you recruit or
refer for a fee."
This means for nonagricultural employers, you should retain
I-9s for all current employees for as long as they are employed
AND continue to maintain them for a year after they are terminated.
However, if an employee leaves before they have been with the
employer for 3 years, the employer must maintain the I-9 for
longer than 1 year from the date employment is terminated. So
if an employee leaves after 1 year, the employer must maintain
that employee's I-9 for 2 years after they are terminated. If
the employer only maintained this employee's I-9 for 1 year
after termination, s/he would have only maintained it for 2
years, which is contrary to the Handbook's "whichever is
later" guidance. While the Handbook's guidance is not a
model of clarity, it appears to say that all I-9 forms have
to be maintained for a minimum of 3 years. Note this causes
confusion only for employees who leave an employer before completing
3 years of service. For employees who leave after 3 or more
years of service, an employer must retain I-9 forms for 1 year
after an employee leaves his/her employ.
Q - Why must United States citizens
fill out I-9 forms?
A - The I-9 form is designed to determine who
is authorized to work in the United States. It's purpose is
not to determine who is and is not a citizen. While all citizens
are authorized to work here, it is not always easy to recognize
who is and is not a citizen. We are a diverse people drawing
our heritage from every country on the planet. There is no stereotype
for what an American citizen looks or sounds like. Citizens
look and sound like every person on earth. That is America's
strength. It is because of this strength that employers cannot
simply look at new hires and conclude, "you I need to do
an I-9 for, and you I do not." For this process to have
a chance of working, everyone has to have one done.
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