T0:State Departments and Agencies
FROM: Kathy A. Bennett, Deputy Commissioner and General Counsel
SUBJECT: The Immigration and Nationality Act
Public Law 99-603, the Immigration Reform and Control Act of 1986, imposes a number of requirements on employers, including public employers. The Act, which requires employers to verify employees' citizenship and legal ability to work, became effective on November 6, 1986. Although each State department and agency is responsible for establishing procedures in compliance with this measure, in an effort to assist you during the initial stages of implementation, this Department will disseminate information obtained from Washington.
Enforcement of this Act is scheduled to begin on June 1, 1987 with only citations to be issued to those not complying until May 31, 1988, after which time fines will be levied.
The task of establishing proper procedures and controls for the verification process has been made somewhat difficult as the federal government has not yet promulgated final regulations to implement this Act. Further, the 'compliance form' (INS I-9, see draft copy [not] attached) to be used in this verification process is still under review.
Under the Act, all persons hired or appointed after November 6, 1986 will have to produce evidence of citizenship or naturalization or, if a resident alien, evidence of their right to be employed in this country.
To comply, the employee must submit to the personnel office of the appointing authority documents which establish employment authorization and identity.
Both employment authorization and identity may be established through production of one of the following documents:
A prospective employee who does not possess one of the above documents must produce a document to establish employment authorization and a second document to establish identity.
In order to establish employment authorization the employee may use either:
Identity may be established by producing a driver's license or similar document issued for the purpose of identification by a State, if it contains a photograph of the individual or personal identifying information relating to the individual.
We understand that the federal regulations to be issued may prescribe additional acceptable documentation.
In order to comply with federal law, each State agency must obtain the information necessary to complete the 'Employer's Certification' (Part F on the draft of form I-9) from each person newly appointed to the agency as well as each person appointed on or after November 6, 1986 to date. Photocopies of the documents. presented by such persons should be made and must be retained with the form as part of your personnel records for three years after the initial date of employment or for one year following the date the employee separates from service, whichever is later. (The Act specifically authorizes copying such documentation for this purpose regardless of other provisions of law prohibiting the reproduction of such materials.]
In addition, there will be a need to bring personnel files up-to-date for all individuals hired since November 6, 1986. We recommend that, while we are waiting for the INS to produce the final version of the form I-9, you begin to identify all such persons and inform them that they will soon be required to produce the necessary documents to prove their eligibility to work lawfully in this country. If you have any data needs in connection with identifying such persons, please contact Susan Whitfield of this Department at 518-457-7355.
We will provide additional information as soon as the final regulations are promulgated. In the interim, please direct questions to the INS at (518) 472-2434.
signed, Kathy A. Bennett