Which form does an employee complete to signify eligibility to work in the US?

Most employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment. The INA requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form, and reviewing documents showing the employee's identity and employment authorization. Other state and federal laws require some employers to use E-Verify. Federal law prohibits employers from rejecting valid documents or insisting on additional documents beyond what is required for the Form I-9 or E-Verify processes, based on an employee's citizenship status or national origin. For example, an employer cannot require only those who the employer perceives as "foreign" to produce specific documents, such as Permanent Resident ("green") cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment. Applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application:

"In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire."

E-Verify employers must use the system consistently and without regard to the citizenship, immigration status, or national origin of employees. They must also notify every employee who receives a Tentative Nonconfirmation (TNC) and should not make assumptions about employment authorization based on the TNC issuance. If an employee contests a TNC, employers cannot fire, suspend, modify a work schedule, delay job placement or otherwise take any adverse action against the employee just because the employee received a TNC.

As stated above, the INA prohibits employment discrimination on the basis of national origin by smaller employers (with four to 14 employees). The INA prohibits retaliation against individuals for asserting their rights under the INA, or for filing a charge or assisting in an investigation or proceeding under the INA. Discrimination charges under the INA are processed by the Immigrant and Employee Rights Section (IER) in the Department of Justice's Civil Rights Division. For more information, contact IER at the numbers below (9:00 am-5:00 pm ET, Monday-Friday) or visit IER's website. Calls can be anonymous and in any language:

If you hire employees, then there is information that you need to secure for your records and forms that you must complete including the following:

Employee’s Eligibility to Work in the United States

You must verify that each new employee is legally eligible to work in the United States. Have the employees you hire fill out Form I-9, Employment Eligibility VerificationPDF.

Employee's Social Security Number (SSN)

You are required to get each employee's name and Social Security number (SSN) and to enter them on Form W-2 (this requirement also applies to resident and nonresident alien employees). If your employee does not have their social security card readily available, then the Social Security Administration (SSA) offers Social Security number (SSN) verification and quick access to relevant forms and publications.

Do not accept an ITIN in place of an SSN for employee identification or for work. An ITIN is only available to resident and nonresident aliens who are not eligible for U.S. employment and need identification for other tax purposes. You can identify an ITIN because it is a 9-digit number that begins with the number "9" and is formatted like an SSN (NNN-NN-NNN). 

Note: An individual with an ITIN who later becomes eligible to work in the United States must obtain an SSN.

Employee's Withholding

To know how much income tax to withhold from employees' wages, you should have a Form W-4, Employee's Withholding Certificate, on file for each employee. Ask all new employees to give you a signed Form W-4 when they start work. Make the form effective with the first wage payment. If employees claim exemption from income tax withholding, then they must indicate this on their W-4. The amount of income tax withholding must be based on filing status and withholding adjustments as indicated on the form. If a new employee does not give you a completed Form W-4, then withhold tax as if the employee is single. Additional withholding may be required on wages paid to non-resident aliens.

A Form W-4 remains in effect until the employee gives you a new one. If employees claim exemption from income tax withholding, then they must give you a new Form W-4 each year. If an employee gives you a Form W-4 that replaces an existing Form W-4, then begin withholding no later than the start of the first payroll period ending on or after the 30th day from the date you received the replacement Form W-4. For exceptions and invalid Forms W-4, refer to Publication 15, (Circular E), Employer's Tax Guide.

You may also refer your employees to the tax withholding estimator. Remember that this application is to help employees to ensure that they do not have too much or too little income tax withheld from their pay. It is not a replacement for Form W-4, but most people will find it more accurate and easier to use than the worksheets that accompany Form W-4. They may use the results of this program to help them complete a new Form W-4, which they will submit to their employer. Special rules may apply to agricultural employers. For more information, please refer to Publication 51, (Circular A), Agricultural Employer's Tax Guide.

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