Employment Eligibility Verification
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What Is Employment Eligibility Verification?
Employment eligibility verification is the process of verifying the identity of employees and their authorization to work in the United States. All employers in the United States must complete Form I-9 for each employee they hire. Employees and employers (or their authorized representatives) must each complete sections of this form. In it, employees are attesting to their ability to work in the United States and providing documentation to their employers that shows evidence of both their identity and their work authorization. Employers must then examine the documents and certify that they appear to be genuine. Some employers are required by federal or state law to further confirm employment eligibility through the E-Verify program.
Why Is Employment Eligibility Verification Important?
Mandated by the Immigration Reform and Control Act of 1986 (IRCA), employment eligibility verification is important for several reasons.
- Employment eligibility verification is required by law with sanctions for non-compliance. When IRCA was introduced, it was designed to discourage illegal immigration by limiting the ability of those unauthorized to work to obtain employment. Failure to comply with IRCA can result in both civil and criminal penalties. Technical violations, such as completing the form incorrectly, can be costly. More expensive, however, are willful violations where an employer knowingly hires someone who is not authorized to work in the US. In addition to monetary penalties, employers may be subject to criminal prosecution.
- Employment eligibility verification helps confirm the identity of employees. Employers can have more confidence that the person they think they are hiring is who they say they are. This doesn’t mean that instances of identification fraud aren’t rampant, but it does provide an extra opportunity to substantiate an employee’s identity. Using the E-Verify process further strengthens this confirmation of identity.
- Gives preference to employees who have obtained appropriate work authorization. Many employees from other countries have gone through the legal process to obtain US work authorization, often requiring many years of effort and expense. Ensuring appropriate work authorization means you don’t reward those who haven’t gone through the appropriate steps.
- Offers protection against discrimination to non-citizens of the United States. One of the key provisions of IRCA is that employers may not refuse to hire or otherwise discriminate against non-citizens who are legally authorized to work in the United States.
Best Practices for Employment Eligibility Verification
These best practices help ensure that employers appropriately comply with employment eligibility verification requirements.
Follow a Consistent Process
Employers are wise to handle their I-9 processes consistently. When onboarding new employees, ask new employees to complete their portion of the I-9 form on the first day of employment. Letting new employees know in advance of the first day that they need to bring appropriate identification documents with them is also important. While employers can’t dictate which documents employees choose to present, they can provide the list of acceptable documents as indicated on the I-9 form itself. If employees don’t show up with the appropriate documents, inform them of the 72-hour window that requires employees to present appropriate documents during that time or stop working until they do. Setting expectations with employees at the time of hire that the company complies with employment eligibility verification is usually the best way to ensure their cooperation.
Some employers photocopy and keep identification documents with I-9 forms, while others prefer not to. The law doesn’t require companies to keep these copies, but it does have specific guidance for those that do.
Rehiring former employees may or may not trigger another employment eligibility verification submission. Employers should understand the timelines and requirements for compliance. SHRM has an excellent article that explains this in more detail.
Some work authorization documents have an expiration date before which employers need to reverify the employee’s ability to continue working. More information about which documents need to be reverified is found online at U.S. Citizenship and Immigration Services.
Train All HR Team Members and Authorized Representatives
Everyone involved in the employment eligibility verification process should understand the requirements of the law and the company’s processes for compliance. A common mistake is that some employers or their representatives accept photocopies of identification documents instead of viewing original documents in person. This practice has been prohibited except during COVID-19 when temporary flexibility was granted to complete this process remotely.
Except for COVID-19 temporary policies, you must designate authorized representatives when hiring remote employees whose identification documents they cannot personally view. These authorized representatives not only view the original identification documents but also sign the Section 2 Certification of the I-9 form on behalf of the company. Under federal law, authorized representatives can be anyone employers designate, such as another remote employee in the same company, a notary public, or even a neighbor of the employee. Some state laws are more restrictive than federal law as to who can serve as an authorized representative. Ultimately, employers are liable for any violations in the verification process, so it is wise to select authorized representatives who you are confident can complete these responsibilities successfully.
Properly Store Completed I-9 Documents
You must maintain completed I-9 forms for all current employees as well as for former employees for a certain period of time after they leave. I-9 forms must be available within three days if requested by an authorized federal agency, such as the Department of Homeland Security or the Department of Labor. Many employers keep these forms separate from employee files to limit access to confidential information about immigration and citizenship status that shouldn’t be viewed by non-HR team members. Keeping the forms separate also facilitates inspection requests in the event of an audit. You can learn more about I-9 storage and retention requirements here.
Consider Using Electronic I-9 Software to Reduce the Possibility of Errors
Many employers choose electronic I-9 software to assist with their employment eligibility verification processes. Several reasons make this a wise investment.
- First, technical errors are common when using paper I-9 forms. Electronic forms guide both employees and employers through the steps they need to complete the forms, thereby reducing if not altogether eliminating, the possibility of technical errors.
- Also, the forms are updated every few years by U.S. Citizenship and Immigration Services, and using an electronic I-9 vendor will ensure the correct version is being used.
- Another reason to use an electronic system is the simplicity of maintaining I-9 forms electronically instead of physically. If audited, companies can produce electronic versions more easily than paper versions.
- Many I-9 form vendors automatically set reminders for employers when certain documents expire so they can reverify I-9 forms in a timely manner. Companies that try to track these reverifications manually often forget them or fail to do them on time.
- One additional advantage of electronic I-9 software tools is that they integrate with the E-Verify system. Companies that also use E-Verify can complete both processes seamlessly with little additional effort.
Perform Regular Self-Audits and Correct Errors
Conducting regular self-audits of the employment eligibility verification process is a recommended best practice for employers. Correcting errors when found through a self-audit shows good faith compliance efforts by the employer to a government auditor if you are audited in the future.
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Carol Eliason Nibley, SPHR, GPHR and Principal Consultant at PeopleServe, has more than 25 years of experience in human resources, most recently serving as Vice President of Human Resources for a technology company in Utah County. Carol has taught HR certificate courses at Mountainland Technical College and in other settings for more than 12 years.
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