Determining If New Workers Are Legal

I’ve had clients inquire about their responsibility for determining if a new employee is legally authorized to work in the U.S. The first step in this process is completing Form I-9, Employment Eligibility Verification. The employer is responsible for making sure this form is completed. The employee must provide documents supporting his/her legal work status within three days of starting work. If they cannot, they can present a “receipt for the application of the documents” within three days and supply the actual documents within 90 days.

Employers are not required to independently verify documents presented. In fact, the instructions to the Form I-9 say “An employer cannot request that an employee present more or different than are required or refuse to honor documents which on their face reasonably appear to be genuine…”. The instructions also include several pages warning employers that they cannot discriminate based on apparent national origin, among other factors, and outlines how employees may file complaints against the employer with the U.S. government. Clearly, an employer could easily be intimidated with the consequences of questioning the validity of documents presented.

Another key step in adding new employees is obtaining a Social Security number. This is done by asking the employee to complete Form W-4, Employee’s Withholding Allowance Certificate. The employer is not required to verify the Social Security number provided, although the IRS does provide several ways to do this. If an employer receives an IRS notice that indicates an employee’s Social Security number may not be correct, they are required to make a “annual solicitation” to the employee for a corrected number. If the employer receives another IRS notice, they are required to make a “second annual solicitation”. The employer simply needs to document that they made the required solicitations. They do not need to force the employee to respond. Also, the IRS guidance states that “Employers should not use receipt of an IRS notice as grounds for employee termination.” As such, the employer is covered as long as they make the two inquiries and documents their attempts to do so.

A few observations. First, employers are generally not trained in the art of determining whether documents are valid or false. In fact, as noted above, the government puts forth a disincentive for asking employees too many questions in this regard. Secondly, the employer has very little responsibility with respect to verifying Social Security numbers. If the two annual “solicitations” are made and documented, they are off the hook (apparently even if they never get a correct number from the employee). Employers certainly do not need any more requirements heaped upon them. However, in my opinion, the current government system makes it relatively easy for illegal aliens to work in this country, and even perhaps continue working indefinitely.