The Importance of Verifying Employment Eligibility In a Legal Manner

By Kathleen J. Jennings (kjj@wimlaw.com)

There is a right way and a wrong way to verify employment eligibility of new employees. A McDonald’s franchisee will pay in excess of $91,000 in a settlement with the Department of Justice (DOJ) because it used the wrong way. Specifically, the company routinely required non-citizens to produce documents issued by the Homeland Security Department during the onboarding process, even after they produced valid, legally acceptable documents to prove they were authorized to work. According to the DOJ, the company’s practice came to the DOJ’s attention after an employee complained that she was required to produce a green card despite having shown her employer a valid driver’s license and unrestricted Social Security card.

This is the third immigration related settlement reached by DOJ in the past week, so it would be safe to say that DOJ is aggressively enforcing anti-discrimination laws related to immigration. At the same time, ICE is increasing its own workplace enforcement efforts to remove persons who are not eligible to work in the U.S. What this means for employers: it is extremely important to accurately and legally verify employment eligibility for all employees.

What is the right way to verify employment eligibility? The employer and employee must properly complete USCIS Form I-9. To establish both identity and employment authorization, a person must present to their employer a document or combination of documents from List A, which shows both identity and employment authorization; or one document from List B, which shows identity and one document from List C, which shows employment authorization.

LIST A: Documents That Establish Both Identity and Employment Authorization

All documents must be unexpired.

  1. U.S. Passport or U.S. Passport Card
  2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
  3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
  4. Employment Authorization Document (EAD) that contains a photograph (Form I-766). Form I-766 expired on its face combined with Form I-797 based on an automatic EAD extension in certain circumstances qualifies as unexpired Form I-766;
  5. For a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

    LIST B: Documents That Establish Identity

    All documents must be unexpired.

    For individuals 18 years of age or older:

  7. Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  8. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  9. School ID card with a photograph
  10. Voter’s registration card
  11. U.S. military card or draft record
  12. Military dependent’s ID card
  13. U.S. Coast Guard Merchant Mariner Card
  14. Native American tribal document
  15. Driver’s license issued by a Canadian government authority

    For persons under age 18 who are unable to present a document listed above:

  16. School record or report card
  17. Clinic, doctor, or hospital record
  18. Day-care or nursery

     LIST C: Documents That Establish Employment Authorization

    All documents must be unexpired

  • A Social Security Account Number card unless the card includes one of the following restrictions:
    • NOT VALID FOR EMPLOYMENT
    • VALID FOR WORK ONLY WITH INS AUTHORIZATION
    • VALID FOR WORK ONLY WITH DHS AUTHORIZATION
  • Certification of report of birth issued by the U.S. Department of State (Forms DS-1350, FS-545, FS-240)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen Identification Card (Form I-197)
  • Identification Card for Use of Resident Citizen in the United States (Form I-179)
  • Employment authorization document issued by the Department of Homeland Security.

    Are you completing Form I-9 correctly? Wimberly Lawson can audit your I-9 Forms and related documents to verify your compliance with federal law.

    Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

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