Employers have a lot of responsibilities when it comes to hiring employees. One of those duties involves checking to make sure the person in question is legally able to work in the United States.
This process starts with form I-9, the document employers use to verify employment eligibility.
“The I-9 is a deceptively simple form,” says Rob Ghio, chair of the immigration group at the Dallas office of the law firm Arter and Hadden. “Employers make mistakes on it all the time.”
The form is designed to determine whether the potential employee is a citizen and whether he or she is authorized to work in the United States. On the back are three lists detailing which forms of identification are acceptable for each situation (citizen, resident or alien).
“The reason it’s confusing is because what typically happens, you show the person the form and they unload their wallet,” says Ghio. “There are two seemingly contradictory requirements: You have to determine whether they are eligible to work here, but you can’t ask for additional or different documents than those listed on the I-9. Too little gets you in trouble, but if you do too much, you get hit under section 274, which prohibits discrimination.”
Even in light of the terrorist attacks, you do not want to ask people of Middle Eastern descent for more documentation than is required by the I-9 form because that would be discrimination.
Employers are not at risk as long as they follow proper procedures.
“When an employee comes in and gives you documents that appear to be facially valid, there are safe harbor provisions in the law,” says Ghio. “If they give you what looks to be a valid driver’s license and Social Security card, then you are protected. The law does not require and discourages investigating the validity of documents.”
Don’t assume because you live in an area with a small immigrant population that the I-9 isn’t an important form.
“You have the same I-9 obligations for a 20th generation American as you do for someone who just crossed the border,” says Ghio.
