Maria is an HR professional who has been on-boarding new employees for over 10 years and is very careful with Form I-9 compliance. She is sure to let employees make their own selection of one document from List A or one document from List B and one document from List C and she never accepts or asks for more documentation than is required to complete Section 2 of the Form I-9. However, when onboarding new employee, John, he presents Maria with both his Employment Authorization Document (EAD) Card as well as an unrestricted social security card for the Form I-9. Maria believes she cannot also accept the social security card (a List C document) if John wishes to use the EAD as a List A document for the Form I-9, but John insists he wants to use both for the Form and has been instructed by the government to use both. What is Maria to do?
I-9 compliance is complex, to say the least. Employers must be careful not just about which documents they review in the physical presence of a new employee for the Form I-9 to verify both their identity and work authorization, but also what they communicate during both the hiring and on-boarding process. One topic every good employer compliance training covers is the concept of “over documentation,” a practice deemed discriminatory under The Immigration and Nationality Act (INA) §274B in which an employer asks for, or accepts, more documents than are necessary to complete the employer’s document review in Section 2 of the Form I-9.
However, there is an instance where a new employee may present an employer with more documents than are necessary to complete Section 2, and the employers may actually accept the extra documentation at the time they are completing the Form I-9 for the new employee.
Certain foreign nationals who are granted refugee or asylee status are provided with an Employment Authorization Document (EAD) that contains an expiration date, however, the work authorization for individuals with refugee or asylee status does not actually expire, therefore they are eligible to receive an unrestricted social security card from the Social Security Administration. If these individuals choose to present their EAD as a List A Document for the Form I-9 they may actually also provide their unrestricted social security card as well to their employer at the time they are hired.
How does the employer accept both of these documents from a new employee for the Form I-9 and avoid “over documentation”? Simple, the EAD is being accepted for Section 2 as a List A document that proves both identity and work authorization. The unrestricted social security card is a List C document that is being accepted for Section 3 to immediately complete the reverification of employment authorization and demonstrate that no further reverification of work authorization is necessary for this employee.
How do employers know if an employee is refugee or asylee? Employers do not need to know the immigration status of their employees, and they are not permitted to ask, they only need to comply with Form I-9 rules and go from the information provided by the employee.
In Section 1 of the Form I-9, a refugee or asylee would properly indicate their status as “Alien authorized to work until” in Section 1 and enter “N/A” as the expiration date. Some foreign nationals do this correctly, while others do not (as we already know how confusing the form is), but for employers that really doesn’t matter. If an employee selects a status of “alien authorized to work until” and enters either a date or “N/A” – the employer is to accept that information and not require correction by the employee (unless the date entered has already past).
Form I-9 guidance tells employers that when an employee selects “alien authorized to work until” as their status in Section 1, and the expiration date from information provided in Section 1 does not match the expiration of work authorization documentation provided for Section 2, the employer is to use the earliest date for reverification purposes. Therefore, if a Refugee or Asylee indicates “N/A” for their expiration date in Section 1, but provides only an EAD expiring on September 18, 2016 to prove work authorization in Section 2, the employer would need to track this expiration date and be sure to reverify the employees work authorization before September 18, 2016. However if that foreign national also provides an unrestricted social security card, the employer can immediately reverify their work authorization and enter the social security card information in Section 3 and avoid having to track dates and reverify work authorization at a later time.
Can employers ask an employee they believe might be an asylee or refugee if they have an unrestricted social security card? No. The employee gets to choose what to present for the Form I-9. If they do not volunteer the unrestricted social security card to the employer, the employer cannot ask for it. However, should the employee present the unrestricted social security card or other purposes, such as background check or payroll, an employer MAY ask if the employee would like to use that card to reverify their work authorization at that time.
Where can I find more information on Form I-9 Compliance? Every individual responsible for completing the Form I-9 on behalf of an employer should have access to USCIS’ Handbook for Employers M-274. Even this comprehensive guide, however, cannot contemplate all possible circumstances so employers should contact an experienced immigration attorney to help support their Form I-9 compliance efforts.
If you have any questions Form I-9 compliance, please do not hesitate to contact your Maggio + Kattar attorney.