Any employer that has ever hired a foreign national, or has had to accept a receipt (in lieu of a lost, stolen, or damaged document), has likely faced frustration with the Form I-9’s Lists of Acceptable Documents. The biggest problem is that the Lists are incomplete. This article covers some of the acceptable documents that did not make the list and reviews some of the basic rules relating to acceptable documents.
In order to complete the Form I-9 and prove identity and work authorization, employees must present original documents to employers. Employers must review originals, not photocopies, scanned copies, faxed copies, or documents presented via video (Skype doesn’t work).
Employer representatives must not sign Section 2 of the Form I-9 unless they have reviewed original documents. The only exception is that an employee may present a certified copy of a U.S. birth certificate. The certified copy should contain a stamp, seal, or other original marking to indicate that it is a certified copy. (So really, it’s an originalcertified copy.)
The rule seems simple at first. Employees must present either one document from List A or two documents: one from List B and one from List C. But if you’ve ever hired a foreign student, you may know that in some cases, you may have to review 4 documents to satisfy List A.
Students in F-1 status who are working under what is called “Curricular Practical Training” typically have to present three documents to satisfy List A: an unexpired foreign passport, I-94 card, and Form I-20. Those in J-1 status typically have to present three, or even four documents for List A: an unexpired foreign passport, I-94 card, and Form DS-2019 (if the DS-2019 does not list the employer as either the program sponsor or an authorized employer, the employee must also present a letter from the program sponsor authorizing employment for the particular employer).
Employees working based on the “cap gap” regulations, H-1B portability, or a timely filed extension of status (where such timely filing results in an automatic extension of employment authorization) may have to present a receipt notice, Form I-20, Form I-129, and even copies of checks and FedEx labels to show that petitions were timely filed.
In the newest release of the Form I-9, the Lists of Acceptable Documents were improved to specify that so-called “restricted” Social Security cards (those stating “Not Valid for Employment,” “Valid for Work Only with DHS Authorization,” or “Valid for Work Only with INS Authorization”) are not acceptable as List C documents.
Employers should also know that the following Social Security cards are not acceptable:
Employers should accept laminated and unsigned Social Security cards.
In order to be acceptable, any document containing an expiration date must be unexpired at the time presented. Reverification is required only when an employee presents a receipt or when the document’s expiration indicates that the employee’s work authorization expires (such as with an Employment Authorization Card).
In certain cases, an expired document may be accepted if presented with proof that an extension application was timely filed or, in the case of people in Temporary Protected Status (TPS), a Federal Register notice indicating that an automatic extension has been granted. This applies to certain foreign nationals (such as those in H-1B status), those in TPS, and to Conditional Lawful Permanent Residents. Most situations in which receipts may be acceptable are covered in the I-9 Handbook for Employers.
If an employee’s document has been lost, stolen, or damaged, the employee may present a receipt showing that he or she applied for a replacement. Within 90 days, the employer must reverify.
According to the I-9 rules, the employee must present the original document for which he or she applied. Many question whether refusing to accept alternative documentation at the end of the 90 days may constitute document abuse (a form of discrimination prohibited under the I-9 rules) and give rise to an OSC (Office of Special Counsel) investigation. Check with your attorney if you face this situation.
The Form I-9 still contains the somewhat mysterious option of presenting, as a List C document, “An employment authorization document issued by the Department of Homeland Security.” A complete list of what may be acceptable in this category has not been released, but it is clear that a Certificate of Naturalization (previously a List A document) works under this category, as does an I-94 card. Employers should be careful when rejecting a government-issued document that appears to prove work authorization, as it may suffice under this category, and refusing to accept an acceptable document may constitute document abuse.
While this article does not cover every possible document combination, it should make clear to employers that the Lists of Acceptable Documents are incomplete. Before rejecting documentation presented by an employee, it may be wise to do a bit of research and/or consult an attorney.