Right-to-work and work-eligibility checks in the United States
Reviewed by Mellow Editorial Team, HR & payroll content team
Every US employer must verify that each new hire is legally authorized to work in the United States before they begin work. The primary tool is Form I-9, and federal law makes verification mandatory — there is no opt-out.
What "right to work" actually means here
In the US, "right to work" has two distinct meanings that employers frequently confuse.
The first is work-authorization eligibility — the federal requirement to confirm that a person can legally work in the country. This applies to every employer, everywhere.
The second is right-to-work laws — state-level labor laws that prohibit making union membership or union dues a condition of employment. These exist in roughly half of US states and are entirely separate from immigration-based work authorization.
This article covers work-authorization eligibility, which is what most employers mean when they ask about "right-to-work checks."
Form I-9: the core requirement
Form I-9 is issued by US Citizenship and Immigration Services (USCIS). Every employer must complete one for each employee hired to work in the United States — citizens and non-citizens alike.
The process has three steps:
1. Employee fills out Section 1 on or before their first day of work. They declare their citizenship or immigration status and sign under penalty of perjury.
2. Employer (or authorized representative) completes Section 2 within three business days of the employee's first day of work. You physically examine original documents presented by the employee and record the document title, issuing authority, document number, and expiration date.
3. Retain and store the form for either three years from the hire date or one year after employment ends — whichever is later. You do not send Form I-9 to any government agency unless you are audited.
USCIS accepts a current version of I-9 only. Check USCIS.gov for the most recent edition before using any form.
Acceptable documents
Employees choose which documents to present — you cannot specify which ones they must bring. Documents fall into three lists:
- List A: documents that establish both identity and work authorization on their own (for example, a US passport or Permanent Resident Card).
- List B: documents that establish identity only (for example, a state driver's license).
- List C: documents that establish work authorization only (for example, a Social Security card with no restrictions).
An employee presents either one List A document, or one List B document combined with one List C document. You must accept any document from these lists that appears genuine and relates to the person standing in front of you. Refusing a valid document type or demanding a specific document is a form of discrimination.
Do not accept expired documents, with one narrow exception: some auto-extended documents under federal programs may still be valid past their printed date. When in doubt, check USCIS guidance.
Remote hires and authorized representatives
If an employee works remotely, you still must complete Section 2 with a physical document examination. You have two options:
- Designate an authorized representative (any person you trust — a notary, another business owner, a local HR contact) to examine documents on your behalf. You remain legally responsible for any errors they make.
- Use E-Verify's remote hire alternative — some employers enrolled in E-Verify can use an authorized representative process supported by that system.
There is no fully remote electronic completion that bypasses physical document review unless you are participating in a USCIS-approved alternative pilot program.
E-Verify: voluntary for most, mandatory for some
E-Verify is a web-based system run by the Department of Homeland Security. It cross-checks I-9 information against federal databases to confirm work authorization. For most private employers, it is voluntary. However, it is required for:
- Federal contractors and subcontractors subject to the Federal Acquisition Regulation E-Verify clause
- Employers in certain states that have passed their own E-Verify mandates (Arizona, Georgia, and others — check your state's current law)
If E-Verify returns a "Tentative Nonconfirmation" (TNC), you must notify the employee and give them an opportunity to contest it. You cannot terminate or take adverse action solely because of a TNC.
Discrimination and compliance risks
Section 1324b of the Immigration and Nationality Act prohibits document abuse and citizenship-status discrimination. Common violations include:
- Asking for more documents than required
- Rejecting documents because they look "foreign"
- Treating employees differently based on national origin or citizenship status during the I-9 process
Penalties for I-9 paperwork violations start at several hundred dollars per form and increase significantly for knowingly hiring unauthorized workers. ICE audits can happen without prior notice. Keeping your I-9 forms complete, current, and properly stored is the most straightforward protection.
For multi-country teams — where some workers are employed abroad and others in the US — the verification rules are jurisdiction-specific. How Mellow runs payroll across six countries on one platform explains how that separation is managed in practice.
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