Technically, yes, an employee can work in the U.S. without an Employment Eligibility Verification Form, known as Form I-9. But she cannot work without proving that she's eligible for employment in the United States. It's the employer's responsibility -- not the employee's -- to maintain information concerning authorization to work. Even if an employee, or a potential employee, has a copy of her Form I-9 from previous employment, that's not acceptable proof of eligibility to work. The employer has a duty to verify employment eligibility for every employee.
The intent of the Immigration Reform and Control Act of 1986 was to provide access to employment for workers with legal authorization to work in the United States. The act requires that applicants indicate whether they have the right to work for a U.S. employer. During the pre-employment steps, prospective employees must produce documentation that proves they are eligible to work in the country. The law obligates U.S. employers to adhere to immigration codes by hiring only legally authorized workers; and protects the rights of U.S. citizens, green card, and visa holders to enjoy employment opportunities. The government, specifically the U.S. Citizenship and Immigration Services and the U.S. Immigration and Custom Enforcement, hold employers accountable for verifying employees' work authorization.
Most employers can choose between two methods to verify employment eligibility when they're processing new workers. They can complete a Form I-9, or they can participate in the federal government's automated process for verifying work authorization, called "E-Verify." E-Verify is a joint effort between the U.S. Social Security Administration and the U.S. Citizenship and Immigration Services, or USCIS. Immigration and Customs Enforcement, or ICE, enforces immigration laws and investigates immigration violations. USCIS and ICE are part of the U.S. Department of Homeland Security.
Form I-9 Method
To use Form I-9, an employer must obtain hard-copy proof of identity and proof of work authorization before the employee begins work. Examples of proof of identity are state-issued identification, a voter registration card, military identification or a school photo ID card. Among the documents that prove legal authorization to work for a U.S. employer are a birth certificate, a U.S. citizen identification card or a Social Security Administration-issued card. Documents such as a U.S. passport, permanent resident card (often called a "Green Card"), or an immigration authorization document are also acceptable proof of both identity and work authorization.
Federal agencies are required to use the Internet-based E-Verify automated method for obtaining proof of work authorization. Some state laws require that employers use E-Verify, and the federal government requires this method for any businesses that have previously been sanctioned for undocumented worker violations. It's a fail-safe method for maintaining compliance with the law and ensuring that employers carry out wise hiring decisions. For most private employers, participation in E-Verify is voluntary, but it can be a prudent move. Employer registration is required, and can be completed online (vis-dhs. com/EmployerRegistration).
- U.S. Citizenship and Immigration Services: I am an Employer: How Do I ... Use E-Verify?
- U.S. Citizenship and Immigration Services: Instructions for Employment Eligibility Verification
- Migration Policy Institute: Lessons from The Immigration Reform and Control Act of 1986
- Goel & Anderson: Innovative Approaches to Immigration Law
Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Her work appears in "The Multi-Generational Workforce in the Health Care Industry," and she has been cited in numerous publications, including journals and textbooks that focus on human resources management practices. She holds a Master of Arts in sociology from the University of Missouri-Kansas City. Ruth resides in the nation's capital, Washington, D.C.