Under federal law, it’s illegal for a U.S. employer to employ a person who’s not authorized to work in the U.S. This is why every employee has to sign IRS form I-9, the “employment eligibility verification.” Part of the form requires new hires to present documents such as a driver’s license or passport to demonstrate identity and work authorization.
What happens when an employer thinks those documents might be fabricated? For example, what if a person doesn’t resemble their driver’s license photo? Many employers aren’t sure whether they should assume the best, refuse to hire the person, or try to double-check the document’s authenticity. Keep reading for tips on complying with work authorization requirements.
Do U.S. citizens have to present proof of identity and work authorization?
Yes. Form I-9 must be signed by every new hire, regardless of their country of citizenship.
How should an employee prove identity and work authorization?
Certain documents prove identity (ex: U.S. driver’s license), others prove work authorization (ex: U.S. Citizen ID card), and others prove both (ex: green card). Form I-9 lists the documents that fall into each category. Workers can produce a document that proves both identity and authorization (“List A” documents) or separate items to prove identity (“List B”) and authorization (“List C”).
The document or combination of documents must meet the requirements of Form I-9. Beyond that, an employer can’t specify which documents it will accept—for example, it can’t decide that it won’t accept school photo IDs as proof of identity, since the I-9 states that those items are acceptable.
How should an employer review an employee’s documents?
An employer should examine the documents an employee presents. The law states that “if the document reasonably appears on its face to be genuine,” the employer should assume it is genuine. The employer should then fill out and sign the portion of the I-9 indicating which documents have been presented and reviewed.
The employer must keep a copy (paper or electronic) of the completed I-9 for at least 3 years after hiring the employee or 1 year after terminating them, whichever is later.
Is there a way to ensure an employee is who they claim to be?
The Federal E-verify system allows employers to cross-check employee information such as SSNs. It’s free to use and mandatory in some states, though not in Minnesota. If you do use E-verify, use it for all new hires, not just for certain types of employees. The website explains how to proceed if an employee’s information is flagged as inaccurate.
Is the employer liable if it turns out an employee forged documents?
Not if they fulfilled the statutory requirements above and acted in good faith. However, repeat offenders may face criminal penalties, including jail time and fines up to $3,000 per unauthorized employee. There are civil fines for employers who knowingly hire or retain unauthorized workers.