Though the Department of Homeland Security is requiring federal contractors to use E-Verify, the agency cannot mandate its use by the states. However DHS announced that it is strongly encouraging states to require employers to register and use the employment eligibility verification system. Illinois and others are right to be wary of E-Verify.
"All the problems that are attendant to the no-fly list are going to be a problem for a nationwide employment eligibility verification system." It would also open up the IRS' databases of confidential taxpayer information to Homeland Security and its contractors. The government won't enforce existing laws and now we all pay for it.
The Employment Eligibility Verification Form I-9 is a U.S. Citizenship and Immigration Services form. It is used by an employer to verify an employee's identity and to establish that the worker is eligible to accept employment in the United States.
Requirements
The Immigration Reform and Control Act of 1986 (IRCA) required employers to verify that all newly-hired employees present "facially valid" documentation verifying the employee's identity and his or her legal authorization to accept employment in the United States. The I-9 form or more properly the Employment Eligibility Verification Form is provided by the federal government for that purpose. Every employee hired after November 6, 1986 must complete an I-9 form at the time of hire. Employees must complete Section 1 of the form within three days of starting work. The employer is responsible for ensuring that the forms are completed properly, and in a timely manner. The I-9 is not required for unpaid volunteers or for contractors. However, a company could still find itself liable if it contracts work to a company knowing that the contractor employs unauthorized workers..
The employee must present a document, or a combination of documents that establishes both his or her identity, and his or her legal authorization to work in the United States. For more details on the documents that can be presented, see the "Documentation" section below.
If an employee doesn't read and write English, a translator or preparer may complete the form and sign it, in addition to the employee's own signature.
In October 2004, new legislation made it possible to complete the I-9 electronically.
Documentation
A variety of documents are acceptable for I-9 purposes. The employee must supply either:
- One document that establishes both identity and employment eligibility (on List A on the I-9) OR
- One document that establishes identity (on List B), together with another document that establishes employment eligibility (on List C)
Documents that may be used under "List A" of the I-9 form to establish both identity and employment eligibility include:
- U.S. Passport
- U.S. Passport Card
- An unexpired foreign passport with an I-551 stamp, or with Form I-94 attached which indicates an unexpired employment authorization
- A Permanent Resident Card (often called a "green card") or Alien Registration Receipt Card with photograph
- An Unexpired Temporary Resident Card
- An Unexpired Employment Authorization Card
- An Unexpired Employment Authorization Document issued by the Dept. of Homeland Security that includes a photograph (Form I-766)
Documents that may be used under "List B" of the I-9 to establish identity include:
- Driver's license or I.D. card issued by a U.S. state or outlying possession of the U.S., provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address.
- Federal or state I.D. card provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address.
- School I.D. with photograph
- Voter's registration card
- U.S. Armed Services identification card or draft record
- U.S. Coast Guard Merchant Mariner Card
- Native American tribal document
- Driver's license issued by a Canadian government authority
For individuals under the age of 18 only, the following documents may be used to establish identity:
- School record or report card
- Clinic, doctor or hospital record
- Day-care or nursery school record
Employees who supply an item from List B must also supply an item from List C
Documents that may be used under "List C" of the I-9 to establish employment eligibility include:
- A U.S. Social Security card issued by the Social Security Administration (Note: cards that specify "not valid for employment" are not acceptable.)
- A birth certificate issued by the U.S. State Department (Form FS-545 or Form DS-1350) Original or certified copy of a birth certificate from the U.S. or an outlying possession of the U.S., bearing an official seal
- Native American tribal document
- U.S. Citizen I.D. Card (Form I-197)
- An I.D. Card for the use of a Resident Citizen in the United States (Form I-179)
- An unexpired employment authorization card issued by the Dept. of Homeland Security (other than those included on List A)
U.S. citizens who have lost their social security card can apply for a duplicate at the Social Security Administration.
Reverification
Employers must update or reverify certain ID documents at or prior to their expiration date. This does not apply to US Passports, which can be used even if expired, nor to already presented and accepted non-expired Permanent Resident Cards when they reach their expiration date, nor to any List B documents, e.g. state driver's licenses and state ID's. The USCIS website, in the Employer section, Employer Bulletins, lists the limited requirements and allowed instances for reverification.
Retention
Employers must retain a copy of the I-9 for a) three years after the employee is hired or b) one year after their employment is terminated, whichever is LATER. This means retention for a total 4 years for an employee who has ended employment at three years, for example (1 year after termination.) The I-9 must be retained as long as the employee is employed with the company.
Anti-discrimination provisions
The Immigration Reform and Control Act which introduced the I-9 form also included anti-discrimination provisions.. Under the Act, most US citizens, permanent residents, temporary residents or asylee/refugee who are legally allowed to work in the US cannot be discriminated against on the basis of national origin or citizenship status. This provision applies to employers of three or more workers and covers both hiring and termination decisions. In addition, an employer must accept any valid document or combination of documents specified in the I-9 form, as long as the documents appear genuine.
For example, an employer could not refuse to hire a candidate because his I-9 revealed that he was a non-citizen (such as a permanent resident or a refugee) rather than a U.S. citizen. For this reason some immigration lawyers advise companies to avoid requiring an I-9 until a candidate is hired rather than risk a lawsuit.. As another example, a company could not insist that an employee provide a passport rather than, say, a driver's license and social security card.
Another anti-discrimination provision requires that employers must enforce I-9 compliance in a uniform manner. For example, an employer must not require some employees to complete an I-9 before being hired, but allow others to complete the form after starting employment.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC") is a section within the Department of Justice's Civil Rights Division that enforces the anti-discrimination provision of the Immigration and Nationality Act ("INA"). Individuals who believe they have suffered discrimination may call the OSC toll-free Worker Hotline at 1-800-255-7688 or 1-800-237-2515 . OSC staff members (who have access to language interpreters) can help workers by calling employers and explaining proper verification practices and, when necessary, by providing victims of discrimination with charge forms. Upon receipt of a charge of discrimination, OSC investigations typically take no longer than 7 months. Victims may obtain various types of relief, including job relief and back pay.
OSC also has an extensive outreach program. It provides staff to speak at outreach events throughout the country, and has free informational brochures, posters and tapes for distribution.
TYPES OF DISCRIMINATION
The Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC") investigates the following types of discriminatory conduct under the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b:
Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee by employers with four or more employees. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals. U.S. citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. Exceptions: permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order, or government contract is permissible by law.
National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign." All U.S. citizens, lawful permanent residents, and work authorized individuals are protected from national o
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