When completing the Form I-9 or E-Verify, one of the most misunderstood special circumstances employers run into is what to do for employees who are handicapped or under the age of 18. To help you ensure I-9 compliance and problem-free E-Verify, here are five best practices to follow when processing employees who either:
1. lack certain identity documents because they are disabled or too young, or
2. require the assistance of a preparer, parent or guardian to complete the form.
Keep the following scenarios in mind when completing I-9 forms for these types of hires. Also be aware that there are exceptions to some of these rules if the employee will be subject to E-Verify.
1. Lack of an Identity Document. The US government has acknowledged that persons under 18 years of age may have difficulty in producing a List B document that establishes identity, since many such persons are ineligible for a driver’s license, and state-issued ID cards are restricted by many states to persons who are 18 or older. As such, there are unique exceptions as to what documents an employer can accept from a minor for completing Section 2 of the Form I-9. Specifically, in lieu of one of the customary documents on List B, employees under the age of 18 are allowed to present one of the following special documents:
• School record or report card
• Clinic, doctor or hospital record
• Day-care or nursery school record
E-Verify Implications: Per the E-Verify Memorandum of Understanding (MOU), E-Verify employers may only accept a List B document that bears a photograph. This mandate supersedes the exceptions above. Therefore, when a minor is unable to produce a standard List B Document an E-Verify employer can only accept a one of the three exception documents if it has a photograph.
2. Parent or guardian attestation. Alternatively, in lieu of presenting any document for List B, or a document that evidences both identity and employment eligibility under List A, the employee under 18 years of age can have his or her parent or guardian complete Section 1 of the Form I-9, vouching for the employee’s identity. In this case, the employee must still produce a document evidencing employment eligibility under List C, such as a SSN card or on 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 age 18” in the space for the employee’s signature;
• The parent or legal guardian must complete the “Preparer/Translator Certification” block;
• Write “Individual under age 18” in Section 2, under List B; and
• The minor must present a List C document showing his or her employment authorization. You should record the required information in the appropriate space in Section 2.
E-Verify Implications: E-Verify employers may not accept “Individual under age 18” as a List B substitute since it does not meet the E-Verify photo requirement.
3. Placement by a nonprofit organization. Similarly, if a person with a disability, who is placed in a job by a nonprofit organization, association, or as part of a rehabilitation program, cannot present a List A document or an identity document from List B, complete Form I-9 as follows:
• A representative of the nonprofit organization, a parent or guardian must complete Section 1 and write “Special Placement” in the space for the employee’s signature.
• The representative, parent or legal guardian must complete the “Preparer/Translator Certification” block;
• Write “Special Placement” in Section 2, under List B; and,
• The employee with a disability must present a List C document showing his or her employment authorization. Record the required information in the space in Section 2.
E-Verify Implications: E-Verify employers may not accept “Special Placement” as a List B substitute since it does not meet the E-Verify photo requirement.
4. Sensory, physical or language barriers. If the employee does not fall under scenario 2 or 3, but is unable to complete the Form I-9 due to a sight impairment or other physical limitation-or even a language barrier-Section 1 of the form can be completed by a preparer/translator, and signed by the employee with the preparer’s assistance. Under these circumstances, the preparer’s attestation does not substitutes for a List B document because the employee is not minor or receiving 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 the Federal and State labor laws to determine what restrictions apply to your area or industry.
These five special cases explain the best practices you should follow any time you are onboarding an employee who falls into these special circumstances.