Once an individual has been offered employment, the employer is required to verify that the individual is legally authorized to work in the United States. The requirement of verification extends to all employees: lifetime U.S. residents as well as aliens. In other words, employers are not just required to verify individuals they perceive to be aliens. Individuals who are independent contractors do not need to complete a Form I-9. The law applies to all employers, regardless of the number of employees they have, and to all individuals hired after November 6, 1986.
The employer must attest on Form I-9, Employment Eligibility Verification, that it has examined documents establishing the following:
- The employee’s authorization to work in this country (“work authorization”); and
- The employee’s identity (in other words, an approved photo identification).
The employer does this by examining certain documents provided by the employee and specified on Form I-9. Specifically, the employer is required to examine either: (a) one document from those specified in Form I-9’s “List A,” or (b) one document from those specified in Form I-9’s “List B” and one document from Form I-9’s “List C.” The employer may not specify which documents it will accept for verification. The employee can choose which document(s) the employee wants to present from the list of acceptable documents.
A new version of Form I-9 was issued in 2007. The significant revision to the 2007 Form I-9 is the removal of several “List A” documents that employers can accept to verify identity and employment eligibility. Employers may no longer accept the following five documents: Certificate of U.S. Citizenship (Form N-560 or N-561); Certificate of Naturalization (Form N-550 or N-570); the Alien Registration Receipt Card (Form I-151); the Reentry Permit (Form I-327); and the Refugee Travel Document (Form I-571). The 2007 Form I-9 also added the newest version of the Employment Authorization Document (EAD I-766) to the list of acceptable documents under “List A.” The 2007 Form I-9 further provided that employees do not need to provide their Social Security number in Section 1 of Form I-9, unless they are employed by an employer who participates in the “E-Verify” program.
Effective April 3, 2009, employers will have to complete a new, revised I-9 form for all new hires and for reverification of certain employees with temporary work authorization. For the first time, the 2009 I-9 form requires new hires to distinguish between U.S. citizenship and non-citizen nationality. The 2009 I-9 form rules also prohibit employers from accepting expired documents to verify employment authorization. Previously, certain expired documents such as a U.S. passport were acceptable. Finally, the 2009 I-9 form reduces the number of acceptable documents that employers may accept to prove identity and employment authorization. Acceptable List A identity and employment authorization documentation will no longer include: Form I-688, Temporary Resident Card; Form I-688A, Employment Authorization Card; and Form 1688B, Employment Authorization Card. List A, however, will now include foreign passports containing certain machine-readable immigrant visas and passports from the Federated States of Micronesia and the Republic of the Marshall Islands if presented with an I-94 or I-94A arrival/departure record.
Employers must use the new 2009 Form I-9 for new employees and when re-verifying existing employees commencing on April 3, 2009. The new Form I-9 can be accessed at www.uscis.gov/ files/form/I-9.pdf.
Section 1 of the Form I-9 must be completed by the employee at the time of hire.42 For employees hired for more than three business days, Section 2 of the Form I-9 must be completed by the employer within three business days of the date the employee was hired. For employees hired for fewer than three business days, the form must be completed on the first day of employment.
If the employee is unable to provide the required verification documentation within three days of hire because a document is lost, stolen or damaged, the employee may present a receipt for the application for the verification document by the third day of employment.43 The employee must present the actual document within 90 days of the date employment begins.44 Form I-9 should be notated initially to reflect that a receipt was presented and later that the actual document was presented.
If the employee is an alien authorized to work until a specific date, the employer must re-verify the employee’s employment eligibility on or before the date the employee’s work authorization expires.45 The employee must present a document that shows either an extension of the employee’s initial employment authorization or new work authorization. Upon receipt of the documentation, the employer must complete Section 3 of the Form I-9 and record the new expiration date.
An employer can terminate an employee who:
(1) fails to produce the required documentation, or a receipt for a document, within three business days of the date employment begins;
(2) fails to produce the actual document within 90 days of the date employment begins, if the employee presented a receipt for a document within the first three business days of employment, or produces other work authorization; or
(3) fails to produce proof of current work authorization to continue to work when an employee’s work authorization expires.
For more information on completing the Form I-9, employers can obtain the “Handbook for Employers-Instructions for Completing the Form I-9” (Immigration Form M-274), which can be obtained online from U.S. Citizenship and Immigration Services at www.uscis.gov/files/ nativedocuments/m-274_3apr09.pdf.
Employers are required to retain all completed I-9 forms for either three years from the date of hiring or one year from the date the individual’s employment is terminated, whichever is later.46 Employers are permitted, but are not required, to copy the documents presented by the employee. If copies of those documents are retained, they must be kept together with the I-9 form. Employers should keep I-9 forms, however, separate from the employee’s personnel record. The forms may be inspected by U.S. Immigration and Customs Enforcement and the U.S. Department of Labor.47
Unless an employer establishes a good faith defense, an employer that knowingly hires an unauthorized alien is liable for civil penalties of not less than $275 and not more than $2,200 for each unauthorized alien for the first violation occurring before March 27, 2008 and not less than $375 and not exceeding $3,200 for a first offense occurring after March 27, 2008; not less than $2,200 and not more than $5,500 for each unauthorized alien for the second violation occurring before March 27, 2008 and not less than $3,200 and not exceeding $5,500 for a second offense occurring after March 27, 2008; and not less than $3,300 and not more than $11,000 for each unauthorized alien for more than two violations occurring before March 27, 2008 and not less than $4,300 and not exceeding $16,000 for more than two offenses occurring after March 27, 2008.48 Persons or employers convicted of engaging in a “pattern or practice” of hiring unauthorized aliens are subject to a fine of up to $3000 and/or imprisonment of up to six months for the entire pattern or practice.49 “Pattern or practice” involves regular, repeated and intentional activities. Employers who fail to properly complete, retain and/or make available for inspection Forms I-9 as required by law may face civil money penalties of not less than $100 and not more than $1000 for each employee for whom such violation occurred.
A Minnesota executive order was recently passed requiring employers that are awarded state contracts in excess of $50,000 to certify their compliance with federal immigration laws and that they do not knowingly employ persons in violation of immigration laws.50 Under the order, vendors and subcontractors must also certify that, as of the date state services will be performed, they have implemented or are in the process of implementing the federal government’s “E-verify” program (an electronic employment verification system) for all newly hired employees in the United States. Employers that knowingly employ individuals who are ineligible to work risk having their contracts terminated and possibly being banned from doing business with the state.
The order also requires recipients of business subsidies to certify their compliance with federal immigration laws in relation to employees performing work in the United States.51 The Commissioner of Economic Employment and Development is to establish the certification compliance procedures for these businesses.
An employer wishing to employ a foreign worker should be aware that there are a number of visa categories that allow an alien to work in the United States.
An alien who is an immigrant should have a Permanent Resident or Resident Alien card, more commonly known as a “Green Card.” Generally, permanent residents may be employed by most U.S. employers.
In contrast, non-immigrant aliens are usually restricted to employment that has been approved and are limited to a specific employer. Some of the more common visa categories available to non- immigrant aliens are the H-1B; E-1 and E-2; L-1A and L-1B; and TN.
The H-1B category is available for specialty occupations that require a minimum of a bachelor’s degree. The employer must demonstrate that it is offering the prevailing wage for the position in the employer’s labor market and obtain an approved Labor Condition Application prior to petitioning to the Bureau of Immigration and Customs Enforcement to hire the alien. There is an annual “cap” on the number of H1-B petitions that the U.S. Citizenship and Immigration Services will approve each fiscal year (October 1 to September 30).
The E-l and E-2 categories are available to individuals who will commit a substantial investment in a U.S. enterprise. The investor must be a national of a “treaty” country as listed in the Department of State Foreign Affairs Manual. These categories are also available to certain executive, managerial, supervisory, or essential employees of the investor. Such employees must also have the nationality of the treaty country.
The L-1A and L-1B categories are available to intracompany transferees who are coming to the United States to work for a U.S. employer. The U.S. employer must have a qualifying business relationship with a foreign business entity, such as that of a parent company, subsidiary, joint venture, or branch office. The proposed employment must be in an executive or managerial capacity (L-1A) or for an employee with specialized knowledge of the business (L-1B).
The TN category, which was created as part of the North American Free Trade Agreement of 1994 (NAFTA), is available to employers that wish to employ Canadian or Mexican business professionals in one of the professions listed on NAFTA Schedule 2.52
There are also a number of other less-common visa categories and situations allowing an alien to work in the United States.
Employers should consult legal counsel with knowledge of immigration law if they are considering employing foreign immigrant or non-immigrant workers.
CREDITS: This post is an excerpt from An Employer’s Guide to Employment Law Issues in Minnesota, originally produced through a collaborative effort between the Minnesota Department of Employment and Economic Development and Lindquist & Vennum, P.L.L.P.
This post is part of a series of posts on hiring an employee in Minnesota.
41. 8 U.S.C. § 1324a (2007).
42. 8 C.F.R. § 274a.2(b)(1)(i)(A) (2007).
43. 8 C.F.R. § 274a.2(b)(1)(vi)(A) (2007).
44. 8 C.F.R. § 274a.2(b)(1)(vi)(A)(3) (2007).
45. 8 C.F.R. § 274a.2(b)(1)(vii) (2007).
46. 8 U.S.C. § 1324a (b)(3) (2007).
48. 8 C.F.R. § 274a.10(b)(1)(ii)(A-C) (2007).
49. 8 U.S.C. § 1324a(f) (2007).
50. Minn. Exec. Order No. 08-01 (Jan. 7, 2008).
51. Minn. Exec. Order No. 08-01, 3 (Jan. 7, 2008).
52. 8 C.F.R. § 214.6 (2007).