Acceptable documentation

Scope

The Immigration and Nationality Act (INA) requires employers to establish identity and work authorization for all new employees hired after November 6, 1986, including both citizens and non-citizens.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

As the employer, you must:

• Accept any valid documents presented by potential employees. You may not ask for more documents than those required, and you may require an employee to present a specific document or combination of documents.
• Allow the employee to choose which document(s) to present from the Form I-9’s Lists of Acceptable Documents. The documents listed on the back of Form I-9 are acceptable as long as they reasonably appear to be genuine.
• If photocopying documents, do so consistently for all employees (you cannot selectively make photocopies of certain documents, like those presented by suspected immigrants).

Genuineness of presented documents. You are not expected to be a document expert. You are only expected to examine the document(s) presented and, if they reasonably appear on their face to be genuine and to belong to the person presenting them, accept them. To do otherwise could be an unfair immigration-related employment practice. If a document does not reasonably appear on its face to be genuine or it does not appear to belong to the person presenting it, you must not accept it and should ask for another document from the lists.

Employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate. You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen, or destroyed documents), within three business days of the date employment begins. However, you must apply these practices uniformly to all employees.

If an employee presents a receipt for a replacement document for the Form I-9 (not an application for renewal, but a receipt to replace a currently valid document that was lost, stolen, or damaged), the employee must produce the actual document(s) within 90 days of the date employment begins.

Discovering false documentation. False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. As some point, you may inadvertently accept a document that is not in fact genuine – or that is genuine but does not belong to the person who presented it. You will not be held responsible if the document reasonably appeared to be genuine and belong to the person presenting it.

If you discover that you have inadvertently accepted illegitimate documentation, you should question the employee regarding the information provided. If you conclude that the documentation is not legitimate, and the employee cannot provide other valid documentation, you must terminate the employee. You cannot continue to employ someone who is unable to prove work authorization.

Employees not authorized to work. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents this documentation, then asks you to update your files.

• In such a case, U.S. immigration law does not require you to terminate the employee’s services. However, your personnel policies regarding provision of false information may apply.
• Legally, your only obligation is to correct the relevant information on the Form I-9.

Note that if an employee comes forward with new documentation under the Deferred Action for Childhood Arrivals (DACA) or Deferred Action for Parental Accountability (DAPA) programs, there may be specific steps the employer must follow to update the employee’s I-9 documentation.

You may also learn that an employee whose documentation appeared to be in order for Form I-9 purposes was not actually authorized to work. In such case:

• Question the employee and provide another opportunity for review of proper I-9 documentation.
• If the employee is unable to provide satisfactory documentation, employment should be discontinued.

Photocopying documents. There are two separate and unrelated photocopy issues:

• First is whether you may accept photocopies of identity or employment eligibility documents to fulfill I-9 requirements. Only original documents are acceptable, with the exception of a certified copy of a birth certificate having a raised seal imprinted on it.
• The second is whether you may make and attach photocopies of documentation submitted to satisfy Form I-9 requirements to the employee’s Form I-9. While this is permissible, it is not required. Where this practice is undertaken, it must be consistently applied to every employee, without regard to citizenship or national origin.

Employers who use the E-Verify system are required to photocopy certain documentation for use with the system’s photo matching tool. This requirement within the E-Verify system does not invoke a requirement that employers copy ALL I-9 documentation, however. Employers who do not otherwise make copies of all I-9 documentation but participate in E-Verify may make copies only of those documents required to be photocopied by E-Verify rules.

Green cards. The terms Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence. The Permanent Resident Cards are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the cardholders must obtain new cards.

An expired Permanent Resident Card cannot be used to satisfy Form I-9 requirements for new employment. However, even though the cards carry expiration dates, the status they provide is permanent, so while the documents must be unexpired when presented initially, they do not need to be reverified when they expire later on.

Social Security card issues. The Social Security Administration (SSA) currently issues social security numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted social security cards that are undistinguishable from those issued to U.S. citizens.

A “Valid only with INS (or DHS) Authorization” social security card is issued to an alien who presents proof of temporary work authorization; these cards do not satisfy the Form I-9 requirements.

The “Not Valid for Employment” social security card is issued to aliens who have a valid non-work reason for needing a social security number (e.g., federal benefits, state public assistance benefits), but are not authorized to work in the U.S.

Internal Revenue Service (IRS) Individual Taxpayer Identification Numbers (ITINs) issued to aliens dealing with tax issues (e.g., reporting unearned income such as savings account interest, investment income, royalties, scholarships, etc.). An Individual Taxpayer Identification Number card is NOT a valid employment eligibility document.