NEW YORK STATE DEPARTMENT OF CIVIL SERVICE
State Personnel Management Manual
Advisory Memorandum # 94-06
|| Department and Agency Personnel and Affirmative Action
|| Marie D. Dukes, Deputy Commissioner and General Counsel
|| The Immigration and Nationality Act
THIS ADVISORY MEMORANDUM REVISES THE INFORMATION IN ADVISORY MEMORANDUM
#88-07, ISSUED JUNE 27, 1988, AND ADVISORY MEMORANDUM #87-02, ISSUED
MAY 29, 1987 WHICH SHOULD BE REMOVED FROM BOTH PLACES IN YOUR SPMM AND
The Immigration and Nationality Act of 1986 makes it unlawful for an employer,
including public employers, to employ aliens who are not authorized to
work in the United States. The Act establishes an employment verification
system and makes it unlawful for an employer to hire any person without
verifying their identity and employment eligibility.
In accordance with the Act, each department or agency must complete,
for any person hired after November 6, 1986, the effective date of the
Act, Immigration and Naturalization (INS) Form I-9, verifying that the
person is a United States citizen or an alien lawfully authorized to work
in the United States. A copy of the current Form I-9 is attached. You
may photocopy or reprint Form I-9 for use by your department or agency.
Remember to print or copy both sides of the Form.
The regulations of the INS implementing the employment verification requirements
of the Act, provide that an employer will not be deemed to have "hired"
an individual if the individual is continuing in his or her employment
and as a reasonable expectation of employment at all times. An individual
is considered continuing in their employment:
- during any period of approved paid or unpaid leave;
- if he or she is promoted;
- if he or she is reinstated after disciplinary suspension for wrongful
termination, found unjustified by any court, arbitrator, or administrative
body, or otherwise resolved through reinstatement or settlement;
- if he or she is reassigned to another location, or
- if he or she is engaged in seasonal employment and has a reasonable
expectation of being recalled.
All new employees must complete section 1 of the Form "Employee
Information and Verification," and produce documentation establishing
their identity and eligibility to be employed in the United States. Employers,
within three days of hire, must complete section 2 of the Form "Employer
Review and Verification," after physically examining the documentation
presented by the employee and ensuring that it appears to be genuine.
If an individual, with the exception of an alien who indicates that he/she
is not authorized to work, is unable to produce the required documentation
within three days of hire, he/she must present a receipt indicating that
he/she has applied for a replacement document within three days of hire
and actually produce the documents within 90 days of hire. If a person
is to be employed for less than three days, the Form must be completed
at the time of hire.
Prospective employees should be notified regarding the documentation
requirements of the Act as early as possible in the appointment process.
If you determine that an eligible on a list is unable to produce the required
documentation, or a receipt indicating he/she has applied for a replacement
document, please so advise the Employment Records Section of this department
in writing. Such eligible's name will be restricted from certification
on all lists on which his or her name appears, until such time as he or
she requests restoration and provides the necessary documentation. This
department will advise eligibles of the eligible lists from which they
are restricted from appointment. Additionally, in cases where an eligible's
name is on a decentralized list, we will notify the agency responsible
for managing the list of our action.
Employees who are unable or unwilling to present acceptable documentation,
or a receipt indicating he/she has applied for a replacement document,
are to be terminated. The Payroll and Personnel Transaction Form reporting
such termination should indicate that the employee was unable to provide
documentation establishing identity and/or employment eligibility as required
by the Immigration law.
On the pages following is a current listing of the acceptable documentation
for establishing identity and employment eligibility. An individual may
present one document from Group A to establish both identity and employment
eligibility, or may present one document from Group B to establish identity
and one document from Group C to establish employment eligibility. The
identification number and expiration date (if any) must be noted in the
appropriate space on the Form. Only original documents are acceptable.
Copies of the documents presented should be made and attached to the Form,
and should be retained in the employee's personnel file.
The following documents may be used to establish both identity and employment
- United States passport (expired or unexpired);
- Certificate of United States Citizenship (INS Form N-560 or N-561);
- Certificate of Naturalization (INS Form N-55- or N-570),
- Unexpired foreign passport with:
(a) unexpired I-551 stamp, or
(b) I-94 Form attached with unexpired employment authorization stamp,
as long as proposed employment is not in conflict with any limitations
or restrictions noted on Form;
- Alien Registration Receipt Card, INS Form 151, or Resident Alien INS
I-551, with photograph, (Effective September 20, 1994, Form I-551 will
be the exclusive registration card for lawful permanent resident aliens.
Form I-551 will replace the old Alien Registration Card, Form I-151,
due to high incidence of fraud connected with Form I-551.)
- Unexpired Temporary Resident Card (INS Form 688);
- Unexpired Employment Authorization Card (INS Form I-688A);
- Unexpired re-entry permit (INS Form I-327);
- Unexpired Refugee Travel document (INS Form I-571);
- Unexpired employment authorization document issued by INS containing
a photograph (INS Form I-688B);
The following documents may be used to establish identity only for individuals
16 years of age or older:
- Driver's license or identification card issued by a state or by the
District of Columbia, Puerto Rico, Guam, the US Virgin Islands, American
Samoa or the Swains Islands, containing identifying information such
as: name, date of birth, sex, height, eye color and address;
- Military dependent's identification card;
- School identification card with a photograph;
- Voter's registration card;
- US Military card or draft record;
- Identification card issued by federal, state or local government entity
containing photograph or identifying information, as noted in (1) above;
- Canadian driver's license;
- Native American Tribal Document,
- United States Coast Guard Merchant Mariner Card.
The following documents may be used by individuals under 18 years of
age or to establish identity only, if they are unable to produce one of
the "identity" documents noted above:
- School record or report card;
- Clinic doctor or hospital record;
- Daycare or nursery school record.
*Minors under 18 years of age who are unable to produce any of the identity
documents, are exempt if their parent or legal guardian completes the
"Employee Information and Verification" section on the I-9 and
writes "minor under age 18" in the signature section, completes
the "Preparer/Translator section and the employer indicates "minor
under age 18" in "Document Identification #".
Persons with disabilities who are being placed into employment by a nonprofit
organization, association or as part of a rehabilitation program may also
produce one of these three optional forms of identification to establish
identity or may follow the procedures for establishing identity for minors
under 18 years of age, substituting the term "special placement"
for "minor under age 18", where appropriate. Further, in addition
to a parent or legal guardian, a representative from the nonprofit organization
or association or rehabilitation program placing the individual, may fill
out and sign the I-9 form.
The following documents may be used to establish employment eligibility
- A Social Security number card, provided it does not state "not
valid for employment purposes,"
- A Certificate of Birth Abroad issued by the Department of State (Form
FS-545 or Form DS-1350);
- An original or certified copy of a birth certificate issued by a state,
county, municipal authority or outlying possession of the United States
bearing an official seal;
- Native American Tribal Document;
- United States Citizen Identification Card (INS Form I-197),
- Resident Citizen Identification card (INS Form I-179),
- An unexpired employment authorization document issued by INS.
The Form must be retained by an employer for three years from the date
of hire or one year after the termination of the individual's employment,
whichever is longer. The Form, with documentation, should be kept with
the individual's personnel records and should not be used for any other
purpose. I-9 Forms may be placed on microfilm or microfiche within articulated
standards. Departments and agencies should also keep a record of any employees
whose employment authorization documents contain an expiration date. The
Act requires employers to reverify employment eligibility by noting the
identification number and expiration date of the document showing continuing
employment eligibility or a new work authorization prior to the expiration
of the original authorization if they are to continue to employ such person.
The Act also prohibits employment discrimination, making it an unfair
immigration-related employment practice to discriminate against a person
in hiring, recruitment or discharge, because of such person's national
origin or citizenship status.
Further, it is an unfair immigration-related employment practice for
an employer to refuse to accept the documents presented by an employee
or to ask for additional or different documents, if the documents presented
by the employee appear to be genuine and to relate to the employee.