Part IV: How to Fill Out Section 2 of Form I-9

This is Part IV of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; and how to fill out section 1 of Form I-9.

Section 2 of Form I-9 is to be filled out by the employer. The employer must fill out and sign Section 2 within three days of the employee’s first paid work day. If the job lasts less than three days, the employer must complete Section 2 before the first paid work day.

It is the employee‘s decision on what documentation to produce to prove their identity or employment authorization. He or she must make one selection from List A, or one selection from List B in combination with List C. The employer must not specify which documents are required; instead, the best practice would be for the employer to present the employee with a printed list of Lists A, B, and C, and for the employee to choose which of those documents to present.

Employees who present documents from List A do not have to present any other document. List A includes:
U.S. Passport or U.S. Passport Card
Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant
visa
Employment Authorization Document (EAD) that contains a photograph (Form I-766)
Foreign passport with Form I-94 or Form I-94A, and Arrival/Departure Report

The employer must be careful that the employee is authorized to work for the employer, especially if they are on a visa that allows the employee to work. The employer must ascertain that the employment authorization to work is not tied to a particular employer who is not the employer hiring the foreign worker. This is particularly important when employing foreign students, and employees on H visa, L visa, and other work visas.

Employees who present documents from List B also have to present a document from List C.

List B includes:
Driver’s license or Identification Card issued by a United States authorities that contains a photograph or name, date of birth, gender, height, eye color and address
Identification Card issued by federal, state or local government agencies or entities that contains a photograph or name, date of birth, gender, height, eye color and address
• School Identification Card with photograph
• Voter’s registration card
• U.S. military card or draft record
• Military dependent’s ID card
• U.S. Coast Guard Merchant Mariners Document Card
• Native American tribal document
Driver’s license issued by a Canadian government authority

List C includes:
• U.S. Social Security account number that is unrestricted. Unrestricted Social Security account numbers are only issued to:
-U.S. citizens
-Non-citizen Nationals of the U.S.
-Lawful permanent residents
-Refugees
-Asylees
-Citizens of the Republic of Marshall Islands, the Federated States of Micronesia, or the Republic of Palau
-Canadian-born American Indians
-Mexican-born Kickapoo Indians
Certification of Birth Abroad issued by the U.S. Department of State
Certification of Report of Birth issued by the U.S. Department of State
Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the U.S. bearing an official seal
• Native American tribal document
U.S. Citizen ID Card
ID Card for Use of Resident Citizen in the U.S.
Employment Authorization Document issued by Department of Homeland Security:
-Form I-94 issued to an asylee
-Work-authorized non-immigrant
-The Unexpired Re-entry Permit
-The Certificate of U.S. Citizenship

The employer must examine each employee‘s documents. If the employer rejects the document, then the employee is allowed to present other documents from Lists A, B and C.

To complete Section 2, the employer should:
• Record the document title, issuing authority, number(s) and expiration date from the employee’s original document(s)
• Enter the date the employee began or will begin paid work
• Provide the name, signature and title of the person completing Section 2, as well as the date he or she completed Section 2
• Record the employer’s business name and address
• Return the documentation presented back to the employee
• Return the documentation presented back to the employee
• Entering the date the employee began employment
• Entering the date the employer examined the employee’s documentation

The employer may copy the documents presented by the employee and attach it to I-9 for record keeping purposes. However, this practice must be uniform for all employees; once started, the best practice for the employer is to employ a uniform policy of retaining a copy of the employee‘s identification and other documents presented that qualifies them to work for the employer.

Check the previous post to learn how to fill out Section 1 of Form I-9.

Next week : Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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