A quick review: In the I-9 verification process, the employee presents – and the employer must verify – evidence of both identity and work authorization. List A documents establish both identity and work authorization. Other documents establish only identity, List B documents. And other documents establish only employment authorization–List C documents.

The employee may present either a List A document OR a List B plus a List C document for I-9 employment eligibility verification.

You will not find the newly approved acceptable I-9 documents mentioned in this post in the current edition of the M-274 Employer Handbook, but you will find them on I-9 Central in their FAQs with document examples in the referenced LawLogix Blog post here. Document examples are taken from the ICE Guide to Selected US Travel and Identity Documents. This is an older version. We provide information at the end of this post where you can obtain a current copy of the February 2018 version.

Let’s highlight the new acceptable documents:

1. Certificate of Naturalization: This is now an acceptable List C document as evidence of employment authorization, but you must also request that the employee produce a List B identity document as well.
2. Resident Alien Card first introduced as a permanent residency card in 1977 that does not have an expiration date; the card is valid indefinitely. It displays a profile photograph, fingerprint and other details. These are still accepted as valid List A documents if they reasonably appear to be genuine and relate to the person presenting them. Bear in mind that the photos on these cards will be very old.
3. Trusted Traveler Documents: Global Entry, Nexus (travel between the US and Canada) and Sentri (travel from Mexico) can now be accepted as valid List B identification cards issued by a federal government agency, since they contain a photograph and various other required identifying information. The employee would also be required to present an acceptable List C employment authorization document.

To order a copy of the most recent edition of the M-396 Guide referenced above, requests can be submitted here.

We are always available to assist you with navigating the often confusing process of establishing a legal workforce and culture of compliance. The new year is an ideal time to review your I-9 inventory, update you staff training program, and arrange for a partial or a full audit.

The Department of Justice Office of Public Affairs recently published a press release pertaining to the employment of two refugees resolving allegations that the company discriminated under the anti-discrimination provision of the Immigration and Nationality Act (INA), when it impermissibly delayed the start date of two refugees after requiring them to provide specific Form I-9 documentation.  Best Packing’s violations occurred when they required the refugees to supply the company with additional Form I-9 verification documents in excess of the law. The claim alleged that other non-refugee employees were not required to supply documents other than state issued licenses and social security cards.

In two charges filed with the department, the refugees alleged that they were not allowed to begin employment until they produced unexpired, Department of Homeland Security-issued employment authorization documents, despite the fact that they initially presented sufficient documentation for employment eligibility verification purposes. The charging parties had presented unexpired state identification cards and unrestricted Social Security cards.  The state ID’s and unrestricted SS cards were deemed insufficient proof of work authorization.

It is necessary for all those charged with Form I-9 processing at your organization to be very familiar with the list of acceptable documents and to have a thorough understanding of the fact that each employee has the right to present a list A document or a combination B plus C document as long as they are acceptable documents, appear to be genuine and represent the employee that is before you.

Under the settlement agreement, Best Packing agreed to pay $4,379 in back pay and comply with all the requirements of the INA.  Understanding the Form I-9 requirements for verifying refugee/asylee(s) will prevent your company from falling victim to similar discriminatory hiring practices.

The process by which an employer is required to verify the employment eligibility of a refugee/asylee(s) when presented with documentation other than the above-referenced List B plus List C combination, can be a bit complicated.  Let’s review this.

Asylees and Refugees are individuals seeking the protection of the United States due to persecution suffered in the home country based upon: race, religion, nationality, social group, or political ideology. These individuals are authorized to work in the US because of their immigration status. When presented with documentation of asylum or refugee status, it is advisable to be aware of the following in regard to examining the I-9 form and the documents presented:

SECTION 1:

1. The employee should check the “An alien authorized to work” box
2. Write the I-94 or Alien Registration Number in the first space
3. Write “N/A” in the second space, because their employment authorization does not expire