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7.1 Other Special Rules for Certain Employers

Members of Employer Associations

Special rules apply to employers who are members of an association of two or more employers that have entered into a collective bargaining agreement with one or more employee organizations. In this case, you will comply with the employment eligibility verification requirements for your employee if:

  • The employee is a member of a collective bargaining unit and is employed under a collective bargaining agreement as described above; and
  • Another employer that is a member of the same employer association (or an agent of the employer association) has previously complied with the employment eligibility verification requirements for this individual within three years (or, if less, the period of time the individual is authorized to be employed in the United States).

Penalties for employing aliens knowing they are unauthorized to work in the United States still apply.

State Employment Agencies

A state employment agency, also known as state workforce agency, is defined in 8 CFR 274a.1 as any state government unit designated to cooperate with the U.S. Employment Service in the operation of the public employment service system.

State employment agencies have the option to complete Form I-9 for individuals they refer for employment. Agencies that do so must issue an employment eligibility certificate to the employer so it is received within 21 business days of the date the referred individual is hired. The referred individual cannot present the certificate.

Form I-9

To complete Form I-9, the agency should follow the guidance in this handbook, except that the agency should leave the employee’s first day of employment blank in Section 2 and must not accept receipts in place of documents.

They are not required to complete Form I-9 and issue a certificate to you for a referred individual who is hired for three days or less. If they choose to complete Form I-9 for these individuals, they must be consistent and complete Form I-9 for all individuals hired for three days or less. They should notify you of their policy under these circumstances. If the agency chooses not to verify employment eligibility or issue certifications, they should tell you that you must complete Form I-9 for these individuals. This notification may be included in the job order or referral form you receive from the agency.

Referral

After the agency and the referred individual complete Form I-9, the agency should provide you with a job order or other appropriate referral on behalf of the referred individual. The job order serves as evidence that the agency completed Form I-9 for the referred individual. The agency may provide you the job order telephonically.

Job order or other referrals, including telephonic authorizations provide the:

  • Name of referred individual;
  • Referral date;
  • Job order number or other identifying number;
  • Agency official’s name and title; and
  • Agency’s address and telephone number

Certification Standards

Agencies must issue a certificate on official agency letterhead and a designated official must sign it. Certificates must include the following information:

  • Date of issuance;
  • Employer’s name and address;
  • Referred individual’s name and date of birth;
  • Position or type of employment for referred individual;
  • Job order number;
  • Form I-9 Section 2 document(s), including title and number;
  • Certification that the agency complied with 8 CFR 274(a)(1)(B) for verifying the referred individual’s identity and employment eligibility, and determining to the best of the agency’s knowledge that the individual is authorized to work in the United States;
  • Any restrictions, conditions, expiration dates, or other limitations that relate to the individual’s employment authorization or a statement affirming that there are no restrictions;
  • A statement that the employer is not required to verify the individual’s identity or employment eligibility, but that you must retain the certification in place of Form I-9;
  • A space or line for the referred individual, under penalty of perjury, to sign his or her name in front of the employer when the employer receives the certification; and
  • A statement that counterfeiting, falsification, unauthorized issuance or alteration of the certification constitutes a violation of federal law under Title 18, U.S.C. 1546.

If a previously referred and certified individual returns within three years of completing Form I-9, the agency should review the employee’s Form I-9. If the individual is still employment authorized, the agency does not need to complete a new Form I-9 before issuing a new certificate. A new certificate is not required when an individual is referred and rehired by the same employer. The agency must reverify the individual’s employment authorization in Section 3 if it is expired before issuing a new certificate. See Section 5.1, Reverifying Employment Authorization for Current Employees, for more information.

If the referred individual returns for other referrals and the agency completed their Form I-9 more than three years ago, the agency must complete a new Form I-9.

Document Retention

The agency must have a Form I-9 and certificate copy for each referral on an employer’s payroll.

The state employment agency must retain Form I-9 and the certificate for three years from the date that the individual was last referred by the agency and hired by the employer. A copy of the certificate must be retained by the employer for three years after the referred individual is hired or one year after the individual stops working for the employer, whichever is later.

Employers of Individual Referred by a State Employment Agency

If an agency refers a potential employee to you with a job order, other appropriate referral form or telephonically authorized referral, and the agency sends you a certificate within 21 business days of the referral, you do not have to check documents or complete a Form I-9 if you hire that person.

Certification

After hiring a referred individual and upon receiving the certificate issued by the state employment agency, you must:

  • Review the identifying information to ensure it relates to the person hired;
  • Observe the individual sign the certificate at the time you receive it;
  • Comply with reverification requirements by:
    • Updating the certificate upon expiration of the employment authorization date if required; or
    • No longer employing the individual upon expiration of their employment authorization date on the certificate.

See Section 5.1, Reverifying Employment Authorization for Current Employees, for reverification information. As a reminder, reverification will take place on your employee’s certificate and not Section 3 of Form I-9.

Your state’s agency is not required to complete Form I-9 or issue certificates for your employees who are hired for three days or less. If this is your state agency’s policy, you are required to complete Form I-9 for these employees.

Rehire/Reverification

You do not need to reverify an employee if you:

  • Rehire the employee within three years of the issue date of their initial certificate; and
  • Determine that the certificate pertains to the employee and they remain employment authorized.

If you review the certificate and determine the employee does not appear to be employment authorized, reverify the employee by updating the certificate. This means the employee must present additional documents to show they are employment authorized. See Section 12.1, List A Documents That Establish Identity and Employment Authorization, or Section 12.3, List C Documents that Establish Employment Authorization, for acceptable documents for reverification.

Do not reverify the following documents after they expire:

  • U.S. passports;
  • U.S. passport cards;
  • Form I-551, Alien Registration/Permanent Resident Cards; and
  • List B documents.  

If you do not reverify an employee’s employment authorization and continue to employ the individual after their employment authorization has expired, you will violate INA 274A(a)(2) and could be subject to penalties as provided in Section 10.0, Unlawful Discrimination and Penalties for Prohibited Practices.

Document Retention

You should document any telephonic authorized job referral as evidence of the job order. Retain job referrals where you retain your Forms I-9.

You must have a certificate for each referred individual who is on your payroll and retain it for a certain amount of time after they stop working for you. Retention of certificates for a rehired referred individual are calculated from the last date of hire. To calculate how long to keep a certificate:

  • If they worked for less than two years, retain the certificate for three years after the date you hired them.
  • If they worked for more than two years, retain their certificate for one year after the date they stop working for you.