So You’re Hiring Your First Employee…

As an entrepreneur starting your own business, you have a lot to think about.  Hiring your first employee is no exception.  Federal law requires employers to verify every employee’s identity and work authorization by completing and retaining an Employment Eligibility Verification (Form I-9) for each employee.  This obligation can present challenges to an employer hiring a foreign national.  Here is a basic overview of the process:

First Day of Employment

On an employee’s first day of work, the employer should provide the employee with the I-9 Form, which can be found here https://www.uscis.gov/sites/default/files/files/form/i-9.pdf.  The employer should instruct the employee to fill out Section 1. After the employee fills out Section 1 completely, the employer should direct the employee’s attention to the List of Acceptable Documents (“the List”), which is located on the last page of the I-9 Form.

The List contains three categories of documents: List A documents, which include a U.S. passport and a Permanent Resident Card, establish identity and work authorization. List B documents, such as a driver’s license issued by a State, establish identity only.  List C documents, including certain social security cards, establish work authorization only.  To establish identity and work authorization, the employer should instruct the employee to produce one document from List A or a document from both List B and List C by the third day of employment.

As the employer, you must not tell the employee which documents to produce.  Requesting a specific document can expose an employer to liability for a type of discrimination called “document abuse.”

Third Day of Employment

On the third day of employment, the employer should confirm that the employee has produced one document from List A or a document from both List B and List C.  If the documents appear to be genuine, the employer should complete Section 2 of the I-9 Form.

Reverification

Foreign nationals frequently have temporary work authorization.  For example, many foreign nationals establish their work authorization through an Employment Authorization Card, which contain an expiration date.  Employers must typically reverify the employee’s work authorization before the Employment Authorization Card expires by asking the employee to produce a List A document or a List C document.  Employers, however, should not reverify the work authorization of an employee who presents a Permanent Resident Card, even if it contains an expiration date.  Reverifying the work authorization of a Permanent Resident can be a form of document abuse that exposes an employer to civil liability.

Storage

The employer should store the completed I-9 separately from the employee’s personnel file.  Employers should retain a copy of the I-9 for three years from the date of hire or one year from the date of termination, whichever is longer.