What Is Evidence of Legal Right to Work?
If you’re hiring in the United States, you need a clear, compliant way to answer two common questions: “What is evidence of legal right to work?” and “Do I have the right to work in the US?” For employers, the practical answer is: evidence of legal right to work is the documentation employees present to complete Form I‑9 (Employment Eligibility Verification)—and the employer’s proper review and recordkeeping of that form.
This SwiftSDS guide explains what is legal right to work in the US, which right to work documents are acceptable for I‑9 purposes, and how to avoid common compliance pitfalls.
For broader context on federal workplace rules beyond hiring authorization, see SwiftSDS’ employment legislation list and overview of what are the laws in usa.
Legal Right to Work vs. “Right-to-Work” Laws (Don’t Confuse These)
Legal right to work (work authorization)
Legal right to work in the US refers to whether an individual is authorized under federal immigration law to accept employment in the United States. Employers verify this through the Form I‑9 process required by the Immigration Reform and Control Act (IRCA).
Key authority:
- IRCA (Immigration Reform and Control Act of 1986)
- 8 U.S.C. § 1324a (unlawful employment of aliens; verification)
- 8 C.F.R. § 274a.2 (employment verification requirements)
“Right-to-work” (union membership laws)
“Right-to-work” is a separate concept under labor law that addresses whether employees can be required to join/pay dues to a union as a condition of employment in certain states. It does not determine immigration work authorization.
If you operate in California, for example, review California right to work law for state-level context (again, separate from I‑9 work authorization).
What Is Evidence of Legal Right to Work in Practice?
For HR teams and business owners, evidence of legal right to work means documents that establish:
- Identity, and
- Employment authorization
These are presented by the employee and recorded by the employer on Form I‑9. The employee may provide one document that proves both (List A), or two documents—one from List B (identity) and one from List C (employment authorization).
Actionable compliance point: The employer must:
- Ensure the employee completes Section 1 by the first day of work (for pay), and
- Examine acceptable documents and complete Section 2 within three business days of the employee’s first day of work for pay.
Right to Work Documents: What Employers Can Accept (I‑9 Lists)
Below is a practical breakdown of right to work documents used for I‑9 verification. (Employers should always use the current Form I‑9 and its official Lists of Acceptable Documents.)
List A (Identity + Work Authorization)
Employees may present one List A document, such as:
- U.S. Passport or U.S. Passport Card
- Permanent Resident Card (Form I‑551, “green card”)
- Employment Authorization Document (EAD) (Form I‑766)
- Certain foreign passports with valid work authorization documentation (as specified on the I‑9 Lists)
Employer tip: If an employee presents an unexpired List A document that reasonably appears genuine and relates to the person, you do not ask for additional documents.
List B (Identity only) + List C (Work authorization only)
If not using List A, employees provide one from List B and one from List C.
Common List B (identity) examples:
- State driver’s license
- State ID card
- Other government-issued photo ID meeting I‑9 requirements
Common List C (work authorization) examples:
- Social Security card (with limitations—some are not valid for employment)
- Birth certificate (as specified on the I‑9 Lists)
- Consular Report of Birth Abroad (as applicable)
Actionable compliance point: Employers cannot require a specific document (e.g., “bring a passport”). That can create discrimination risk under federal rules enforced by the DOJ’s Immigrant and Employee Rights Section.
“Do I Have the Right to Work in the US?” What Employees Should Know
From an HR compliance standpoint, employees typically have the legal right to work in the US if they are:
- U.S. citizens or noncitizen nationals
- Lawful permanent residents
- Individuals with valid employment authorization (e.g., certain visa categories or an EAD)
Employees should be prepared to present acceptable I‑9 documentation on time. Employers should provide clear onboarding instructions that:
- Include the I‑9 deadline expectations, and
- Explain that the employee may choose which acceptable documents to present.
Employer Compliance Checklist (Actionable Steps)
1) Use Form I‑9 correctly—and on time
- Have employees complete Section 1 no later than day one of employment (for pay).
- Complete Section 2 within three business days of the start date.
- Ensure the form is fully and accurately completed (common audit issue: missing dates, unchecked boxes, incomplete certification fields).
2) Don’t over-document (avoid “document abuse”)
Employers must accept documents that:
- Are on the I‑9 Lists,
- Are unexpired (with limited exceptions per I‑9 instructions),
- Reasonably appear to be genuine and relate to the employee.
Requesting extra documents or insisting on a specific document can create compliance exposure.
3) Reverification only when required
You may need to reverify certain time-limited employment authorization documents before they expire. Do not reverify:
- U.S. passports,
- Permanent Resident Cards (I‑551) in most cases,
- Other documents that are not subject to reverification under I‑9 rules (follow the I‑9 instructions carefully).
4) Store I‑9s properly and be audit-ready
Maintain I‑9s for the required retention period (generally: three years after date of hire or one year after employment ends, whichever is later). Consider keeping I‑9s separate from personnel files to simplify audits and limit access.
5) Align hiring verification with broader labor law posting obligations
While I‑9 is not a poster requirement, hiring compliance is often managed alongside required postings. SwiftSDS can help you track federal and state posting rules via Federal (United States) Posting Requirements and state pages like Florida (FL) Labor Law Posting Requirements or Ohio (OH) Labor Law Posting Requirements.
When you review wage/hour compliance postings, you can also cross-check onboarding processes. For example, employers subject to FLSA posting requirements should maintain the current DOL notice, such as Employee Rights Under the Fair Labor Standards Act.
Common Mistakes That Trigger Compliance Risk
Asking for “proof of citizenship”
Employers should not ask employees to prove they are U.S. citizens. The I‑9 process is about work authorization, and employees can be authorized in multiple ways.
Treating contractors like employees (or vice versa)
Form I‑9 is for employees, not true independent contractors. Misclassification can create overlapping legal exposure beyond immigration compliance. If your workforce includes nontraditional roles, see are contractors eligible for fmla for related classification considerations in another federal compliance area.
Forgetting the anti-discrimination angle
Work authorization verification must be applied consistently and fairly. To support a compliant, nondiscriminatory hiring process, connect your I‑9 workflow with your equal employment opportunity practices. SwiftSDS provides context in as it pertains to employment opportunity the eeo strives to and worker protection basics in 5 rights of workers.
FAQ: Evidence of Legal Right to Work
What is evidence of legal right to work for a new hire?
For most employers, it is the acceptable documentation presented for Form I‑9—either one List A document, or a List B + List C combination—reviewed within the required timeline and recorded properly on the I‑9.
Can an employer require a specific right to work document (like a passport)?
No. Employees choose which acceptable documents to present from the Form I‑9 Lists. Requiring a specific document can create discrimination risk and compliance issues.
Is “right-to-work” the same as legal right to work in the US?
No. “Right-to-work” refers to state union membership rules. Legal right to work refers to federal employment authorization verified through Form I‑9.
Next Steps for SwiftSDS Clients
To keep hiring and workplace compliance aligned, review your broader obligations under federal law using SwiftSDS’ employment legislation list, confirm posting needs under Federal (United States) Posting Requirements, and ensure your onboarding process supports consistent worker protections described in definition of workers rights.