Form I-9 Guidance for Refugees and Asylees

by Davis Brown Law Firm

The Office of Refugee Resettlement (ORR) within the Department of Homeland Security (DHS) and the Office of Special Counsel of the Department of Justice (DOJ) issued a joint State Letter on employment eligibility requirements for refugees, asylees, and other special humanitarian populations served by the ORR Refugee Resettlement Program.  The State Letter provides special considerations for served populations when completing Form I-9, Employment Eligibility Verification, and when working for an employer enrolled in E-Verify - an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Refugees and asylees should be aware of the following particular issues that may affect them when completing Form I-9 and when their employer uses E-Verify.

The Form I-9 contains three sections and Lists of Acceptable Documents that employees can choose from to present.  Below is the guidance for each. 

Section 1.  The employee must complete Section 1 attesting that he or she is authorized to work in the U.S. and sign and date where indicated.  The form must be completed in English with an assistance of a translator, if necessary.  Completion in Spanish is acceptable in Puerto Rico only.  Providing a social security number is optional unless the employer uses E-Verify, in which case it is required.  If the employee does not yet have a Social Security number, it must be provided to the employer using E-Verify as soon as it is issued.  Meanwhile the employer should delay running an E-Verify query until the employee is issued a Social Security number.  The employer must allow the employee to work as long as he or she satisfies all other I-9 Form requirements, and may not postpone the start date of an employee solely on the basis of not having a Social Security number.  Providing an employee’s email address and phone number is also optional.  If provided, DHS may contact the employee about important notices from E-Verify system, allowing the employee an opportunity to resolve any potentially erroneous information in government databases.           

Section 2.  It is the employees’ responsibility to present documents establishing identity and employment eligibility.  They have the right to choose which document or combination of documents they present.  The list of acceptable documents is provided on the form.  They have a choice to either present one document from List A, which establishes both identity and employment eligibility, or two documents - an identity document from List B and an employment eligibility document from List C.  For example, a refugee or an asylee may present a valid Employment Authorization Document (EAD) or a valid state ID card with an unrestricted Social Security card.  It is the employer’s responsibility to review the documentation provided by the employee and certify that the document reasonably appears to be authentic and belongs to the employee.  The employer may not refuse to accept unexpired documents or require a specific document from the employee, such as a DHS-issued document, which is not required.   

Section 3.  Sometimes the employer is responsible for updating and re-verifying an employee’s work eligibility.  This generally occurs in cases where the employee states in Section 1 that they are an alien authorized to work until a certain date, or when the employee provides documentation that only demonstrates proof of temporary work eligibility, such as an EAD, which has an expiration date.  Although refugees, asylees, Amerasians, and Iraqi and Afghan Special Immigrations are indefinitely authorized to work in the U.S. and should indicate “N/A” in the status expiration date field in Section 1, an employer may still need to re-verify his or her eligibility, i.e. when EAD expires.  In case of re-verification process, the employee must present either one document from List A or one document from List C, but is not required to submit proof of identity or the same proof of employment eligibility he or she did on the initial Form I-9.  As with initial hire, the employer may not required additional, different, or specific documents from the employee.   

Receipt Rule for Refugees.  Under the receipt rule, a refugee may temporarily meet the Form I-9 requirements during the initial 90 days after arrival in the U.S. by presenting Form I-94 - arrival record showing a refugee admission stamp.  Within 90 days, however, the refugee must provide the employer with either an unrestricted Social Security Card or an unexpired Employment Authorization Document.

Receipt Rule for Others.  All employees may also provide receipts for lost, stolen or damaged documents.  While lawful permanent residents may present a Form I-94 with a photo and I-551 stamp as a receipt for List A document.  Form I-94 with an asylee stamp, however, is not considered a receipt like it is for refugees but is considered a valid employment authorization document appearing on List C, and can be presented in addition to a document from List B.  An I-94 with an asylee stamp does not expire and should not be re-verified.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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