New Developments on Verifying Employment Eligibility

by Attorney Lisa Guerin

Learn the new rules for Form I-9, which employers must complete to verify that new hires are authorized to work in the United States.

When you hire an employee, you must verify his or her identity and eligibility to work in the United States. Employers fulfill this requirement by completing Form I-9 within three days after an employee is hired. The employee must fill in his or her name, address, birth date, and Social Security number. The employer then certifies that the employee has presented documents confirming his or her identity and authorization to work in the U.S., and that these documents appear to be genuine. (For more information on Form I-9 and instructions for completing the form, go to the website of the United States Citizenship and Immigration Service, www.uscis.gov.)

Employers have been required to complete I-9 forms for the last 20 years. In the past year or so, however, the Department of Homeland Security -- the federal government agency now in charge of immigration issues, among other things -- has taken steps to make compliance easier for employers, by:

allowing employers to verify work authorization online

allowing employers to store I-9 forms electronically, and

telling employers what to do if they learn that the information provided by the employee does not match information on file with the government.

Verifying Employment Authorization Online

Employers in all 50 states may now use a Web-based system to verify that new hires are eligible to work in the U.S. This program, called "Basic Pilot," is voluntary, but Congress is considering making it mandatory. Here's how it works:

Employers who choose to use the program must register to do so and complete a "Memorandum of Understanding" -- essentially a contract with the government regarding use of the system.

Employers then receive a user ID and password, which they can use to access the system and make sure the employee's documents match government records.

If the Social Security number the employee provided matches the number on file with the Social Security Administration, the employer will receive an immediate confirmation. If not, or if there is some other problem with the employee's documents, it might take a few days to hear back.

If the employer ultimately learns that the employee's work authorization cannot be verified, it will be instructed to have the employee contact the Social Security Administration to clear up the matter. The employee then has eight days in which to resolve the situation.

Employers who choose to use the online verification service are still required to complete Form I-9 for every new hire; the service simply provides immediate information regarding the employee's eligibility. For more information on the program, go to www.uscis.gov.

Electronic Storage and Signature of I-9 Forms

The Department of Homeland Security issued interim regulations, effective June 15, 2006, explaining the standards for electronic retention and processing of I-9 forms. These rules interpret a law passed by Congress in April, 2005.

The new regulations explain the requirements employers must meet if they wish to sign and store I-9 forms electronically. These rules don't require employers to use a particular type of system; instead, they prescribe minimum standards employers must follow if they wish to use an electronic system.

For example, the employer's electronic storage system must guard against unauthorized use of the information, protect the accuracy and integrity of the records, and allow records to be searched and reproduced. Employers are also required to provide certain information about its records and system to the government, upon request.

What Employers Should Do After Receiving a "No-Match" Letter

The Department of Homeland Security has also issued some guidance for employers who are told, by the Social Security Administration or by the Department of Homeland Security following an audit, that the Social Security number or other information they have for an employee does not match government records. These new rules tell employers what steps they should take after receiving a "no-match" letter, in order to avoid legal liability for knowingly employing an unauthorized alien.

To qualify for this "safe harbor" protection, employers must first check to see whether the mismatch is due to a typo or other clerical error. If so, the employer must correct the error and verify that the corrected information matches the government's records. If not, the employer must ask the employee to either provide corrected information (if the employer's records are wrong) or to take the matter up directly with the government agency. The regulations state that the employer should do this within 14 days of receiving the no-match letter.

If the discrepancy is not resolved within 60 days after the employer receives the letter, the employer is instructed to reverify the employee's identity and work authorization by completing a new I-9 form. This process is similar to the initial verification when an employee is hired, except the employee must submit a document with a photograph to establish his or her identity, and may not use the document that generated the no-match letter in the first place.

If the employee is able to submit appropriate documents, the employer simply stores the new I-9 with its other I-9 forms and continues about its business. If the employee cannot present the required documents, the employer must either terminate his or her employment or risk being held liable for knowingly employing an unauthorized alien.

For additional details on your responsibilities as an employer, see the Social Security Administration website, including a Basic Pilot User Manual.