When completing Form I-9 or E-Verify, one of the most misunderstood special circumstances employers encounter is what to do with employees who are disabled or under the age of 18. To help you ensure I-9 compliance and smooth E-Verify, here are five best practices to follow when processing employees that:
1. lacking certain identity documents because you are disabled or too young, or
2. require the help of a preparer, parent or guardian to complete the form.
Consider the following scenarios when completing I-9 forms for these types of hires. Also note that there are exceptions to some of these rules if the employee will be subject to E-Verify.
1. Lack of Identity Document. The US government has recognized that individuals under the age of 18 may have difficulty producing a List B document that establishes identity, as many of these individuals are not eligible for a driver’s license and cards. State-issued identification cards are restricted by many states to individuals who are 18 years of age or older. As such, there are unique exceptions to what documents an employer of a minor may accept to complete Section 2 of Form I-9. Specifically, instead of one of the usual List B documents, employees under the age of 18 can present one of the following special documents:
• School record or report card
• Medical, medical or hospital history
• Nursery or nursery registration
E-Verify Implications: Under the E-Verify Memorandum of Understanding (MOU), E-Verify employers can only accept a List B document that has a photograph on it. This command replaces the previous exceptions. Therefore, when a minor cannot produce a standard List B Document, an E-Verify employer can only accept one of the three exception documents if they have a photograph.
2. Certification of the parent or guardian. Alternatively, instead of presenting any document for List B, or a document that proves both identity and eligibility for employment under List A, the employee under the age of 18 can ask their parent or guardian to complete Section 1 of Form I-9. , attesting to the identity of the employee. In this case, the employee must still present a document showing eligibility for employment under List C, such as an SSN card or an original or certified copy of a Birth Certificate. In these cases, complete the I-9 as follows:
• A parent or legal guardian must complete Section 1 and write “Individual under 18 years of age” in the space for the employee’s signature;
• The parent or legal guardian must complete the block “Certification of preparer / translator”;
• Write “Individual under 18 years of age” in Section 2, on List B; Y
• The minor must present a document from List C showing their employment authorization. You must record the required information in the appropriate space in Section 2.
E-Verify Implications: E-Verify employers cannot accept a “person under 18” as a substitute for List B as they do not meet the E-Verify photo requirement.
3. Placement by a non-profit organization. Similarly, if a person with a disability, who is placed in a job by a non-profit organization, association, or as part of a rehabilitation program, cannot present a List A document or identity document from List B, complete Form I-9 as follows:
• A representative of the nonprofit organization, parent or guardian must complete Section 1 and write “Special Location” in the space for the employee’s signature.
• The representative, parent or legal guardian must complete the block “Certification of preparer / translator”;
• Write “Special Location” in Section 2, on List B; Y,
• The employee with a disability must present a document from List C showing their employment authorization. Record the required information in the space in Section 2.
E-Verify Implications: E-Verify employers cannot accept “Special Location” as a substitute for List B as it does not meet the E-Verify photo requirement.
4. Sensory, physical or linguistic barriers. If the employee is not included in scenario 2 or 3, but is unable to complete Form I-9 due to a visual impairment or other physical limitation, or even a language barrier, a preparer may complete Section 1 of the form / translator and signed by the employee with the help of the preparer. In these circumstances, the preparer’s certification is not a substitute for a List B document because the employee is not a minor and does not receive special placement assistance.
5. Applicable Laws Restricting Employment. Finally, federal and many state laws restrict the ages, hours, and occupations in which minors may be employed. Accordingly, consider consulting with an experienced attorney familiar with federal and state employment laws to determine what restrictions apply to your area or industry.
These five special cases explain the best practices to follow whenever you hire an employee who is in these special circumstances.