I-9 Verification Documents: It's Not Just Social Security and Drivers Licenses
by Ken C. Gauvey

The last time the I-9 form was updated was 1991. Since then, immigration regulations changed substantially with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"). However, the I-9 was not updated to indicate what documentation is necessary to prove work authorization for non-U.S. citizens, leaving many human resources managers with the impression that a social security card is necessary to prove work authorization in the U.S. It is not. There are classes of aliens authorized to accept employment without a social security card. 8 C.F.R. §274a.12 lists these classes as well as which classes of aliens have work authorization without either a social security card or an employment authorization document ("EAD") issued by the Department of Homeland Security.

Employers should provide an employee with a list of acceptable documentation to prove work authorization and let the employee choose which ones to provide. An updated list can be found at www.uscis.gov. An employer who requests a drivers license and social security card could be charged with violating Title VII, which makes it illegal for an employer to discriminate based on race or national origin. It is better for the employer if the employer is familiar with the types of documentation that satisfy I-9 regulations so they can answer questions from the employee.

A lawful permanent resident who is in possession of a Form I-551 issued by the United States Citizenship and Immigration Service ("USCIS") is authorized to work without an EAD. In addition, the expiration date on the I-551 reflects "only that the card must be renewed, not that the bearer's work authorization has expired." 8 C.F.R. §274a.12(a)(1). This means that even should the Form I-551 expire, the alien still has work authorization and no new I-9 need be created.

An alien granted asylum in the U.S. also has work authorization by virtue of their asylum status. While there is some question about this, the regulation states that an alien who is granted asylum does not have to apply for a document evidencing employability. However, it is the normal practice for USCIS to issue an EAD to aliens granted asylum automatically. 8 C.F.R. §274a.12(a)(5) states that the expiration date of the EAD for an alien who has been granted asylum "reflects only that the document must be renewed, and not that the bearer's work authorization has expired." This is differentiated from aliens who are classified as refugees or who are paroled into the United States. These classes of aliens do require a current EAD issued by USCIS.

In addition, 8 C.F.R. §274a.12(b) contains a listing of all classes of aliens who do not require an EAD but who are authorized to work for a specific employer. This list includes F-1 students seeking on-campus employment for not more than 20 hours per week; an L-1 intra- company transferee; O-1 and O-2 aliens with extraordinary ability in the sciences, arts, education business or athletics and accompanying aliens; a TN visa holder; and a P-1, P-2 or P-3 athlete, artist or entertainer. For these classes, the documentation indicating the class and the specific company the alien is permitted to be employed by is sufficient for the I-9.

Aliens who have applied for but have not yet been granted asylum, who have filed an application for adjustment of status to lawful permanent resident or are released on an order of supervision are required to apply for an EAD and to be approved and in receipt of the EAD before commencing employment.

Remember, employers are not required to be document experts. In reviewing documents, employers are held to a reasonable person standard. For example, if the number on a document is "12345" or "00000", an employer should be on notice that there may be a problem with the document. If the document reasonably appears genuine on its face, however, an employer will not be held liable if the document is later found to be fraudulent.

Immigration practitioners should be consulted if there are any question in the employers mind that might need clarification. I-9 compliance is a significant issue these days with a number of high profile raids conducted by Immigration and Customs Enforcement ("ICE"). Employers should take the necessary steps to ensure that they are not susceptible to the steep civil and criminal penalties associated with poor management of I-9's.

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