Form I-9 and Worksite Compliance: Employment Eligibility Verification

Purpose of Form I-9

The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens.

For Whom Must Employers Complete Form I-9?

Every U.S. employer must have a Form I-9 in its files for each new employee, unless the employee:

  • was hired before November 7, 1986, and has been continuously employed by the same employer.
  • provides domestic services in a private household that are sporadic, irregular, or intermittent;
  • provides services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
  • provides services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)

Current Version of Form I-9

The current version of the Form I-9 and the Handbook for Employers are dated 06/01/2011. Both the Form I-9 and Handbook are undergoing revisions to reflect subsequent changes in U.S. immigration law and procedure.

What Should Be Done With Forms I-9 After They Are Completed?

Unlike tax forms, for example, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in its own files for 3 years after the date of hire or 1 year after the date the employee’s employment is terminated, whichever is later. This means that a Form I-9 needs to be retained for all current employees, as well as terminated employees whose records remain within the retention period. Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection. Note: U.S. immigration law does not prescribe or proscribe storage of a private employer’s I-9 records in employee personnel files. As a practical matter, however, particularly if a large number of employees are involved, it may be difficult to extract records from individual personnel files in time to meet a 3-day deadline for production of I-9 records for official inspection.

Employee’s Responsibility Regarding Form I-9

A new employee must complete Section 1 of a Form I-9 no later than close of business on his/her first day of work. The employee’s signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full. No documentation from the employee is required to substantiate Section 1 information provided by the employee.

Employer’s Responsibility Regarding Form I-9

The employer is responsible for ensuring completion of the entire form. No later than close of business on the employee’s third day of employment services, the employer must complete section 2 of the Form I-9. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The employer should supply to the employee the official list of acceptable documents for establishing identity and work eligibility. The employer may accept any List A document, establishing both identity and work eligibility, or combination of a List B document (establishing identity) and List C document (establishing work eligibility), that the employee chooses from the list to present (the documentation presented is not required to substantiate information provided in Section 1). The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them. Requesting more or different documentation than the minimum necessary to meet this requirement may constitute an unfair immigration-related employment practice. If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.

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Questions About Genuineness of Documents

Employers are not required to be document experts. In reviewing the genuineness of the documents presented by employees, employers are held to a reasonableness standard. Since no employer which is not participating in one of the employment verification pilots has access to receive confirmation of information contained in a document presented by an employee to demonstrate employment eligibility, it may happen that an employer will accept a document that is not in fact genuine – or is genuine but does not belong to the person who presented it. Such an employer will not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it.

Discovering Unauthorized Employees

It occasionally happens that an employer learns that an employee whose documentation appeared to be in order for Form I-9 purposes is not actually authorized to work. In such case, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued (alien employees who question the employer’s determination may be referred to an Immigration field office for assistance).

Discovering False Documentation

False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.

Photocopies of Documents

There are two separate and unrelated photocopy issues in the employment eligibility verification process. First is whether an employer may accept photocopies of identity or employment eligibility documents to fulfill I-9 requirements. The answer is that only original documents (not necessarily the first document of its kind ever issued to the employee, but an actual document issued by the issuing authority) are satisfactory, with the single exception of a certified photocopy of a birth certificate. Second is whether the employer may or must attach photocopies of documentation submitted to satisfy Form I-9 requirements to the employee’s Form I-9. The answer is that this is permissible, but not required. Where this practice is undertaken by an employer, it must be consistently applied to every employee, without regard to citizenship or national origin.

Not Having the Right Documents

Nearly everyone has a valid List B identity document or can obtain one relatively quickly. This is not always the case for employment authorizing documents in Lists A and C. The law permits you to accept a receipt for an application to replace an employment authorization document. The receipt authorizes employment for 90 calendar days, at which point the employee must produce the original document. You should record the receipt number in Section 2 and show an expiration date 90 days from the date the receipt is presented to you. Remember to put this I-9 form in the “tickler” or “call-up” file so that you can re-verify employment eligibility and complete Section 3 of the form at the end of the 90-day grace period.

Documents with an Expiration Date

First, you should not refuse to employ someone merely because his or her employment authorization expires at some point in the future. Second, you should record the expiration date correctly in Section 2 of the I-9 form. If the individual’s employment authorization document (List A or List C) bears an expiration date, then you will want to put that I-9 form in a “tickler” or “call-up” file so that you re-verify employment eligibility just before the employment authorization document expires. This is done by asking the employee to present a current document authorizing employment. (Remember you can avoid any claim of document abuse by giving the employee freedom to choose what document(s) to present.) You should then record the new document information in Section 3 of the I-9 form. There are two exceptions to the re-verification rule: do not undertake re-verification of U.S. passports or alien registration cards, even though each has an expiration date.

Document Abuse Discrimination

The Immigration Act of 1990 amended the law in response to perceptions that employers were going too far in the I-9 process. As amended, the law prohibits employers from:

  1. requiring employees to present any specific document
  2. requiring employees to present more documents than are minimally necessary to establish identity and employment eligibility
  3. refusing to accept a document that reasonably appears to be genuine on its face.

Collectively these prohibitions are referred to as the document abuse discrimination provisions. Enforcement of this part of the law lies with the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices. The penalties for document abuse discrimination are similar to the penalties for improper I-9 completion. The best way to avoid document abuse discrimination is to:

  1. let the employee choose what to present
  2. do not require more documents than minimally necessary to establish identity and employment authorization
  3. do not reject a document that reasonably appears to be genuine and to relate to the individual

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“Green Cards”

The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence in the U.S.. Once granted, this status is permanent. However, the document that an alien carries as proof of this status may expire. Starting with the “pink” version of the Resident Alien Card (the “white” version does not bear an expiration date), and including the new technology Permanent Resident Cards, these documents are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the alien cardholders must obtain new cards. An expired card cannot be used to satisfy Form I-9 requirements for new employment. Expiration dates do not affect current employment, since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents). Note: Even if unexpired, “green cards” must appear genuine and establish identity of the cardholder.

Social Security Card Issues

The Social Security Administration (SSA) currently issues SSA numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted SSA cards that are undistinguishable from those issued to U.S. citizens.

Note on restricted SSA and other cards:

SSA “Valid only with INS (or DHS) Authorization” card – issued to aliens who present proof of temporary work authorization; these cards do not satisfy the Form I-9 requirements.

SSA “Not Valid for Employment” card – issued to aliens who have a valid non-work reason for needing a social security number (e.g., federal benefits, State public assistance benefits), but are not authorized to work in the U.S.

Internal Revenue Service (IRS) Individual Taxpayer Identification Numbers (ITINs) – issued to aliens dealing with tax issues (e.g., reporting unearned income such as savings account interest, investment income, royalties, scholarships, etc.). An Individual Taxpayer Identification Number card is NOT employment eligibility verification.

Retention of Forms I-9

All of an employer’s current employees (unless exempt) must have Forms I-9 on file. A retention date can only be determined at the time an employee is terminated. It is determined by calculating and comparing two dates. To calculate date A, the employer should add three years to the hire date. To calculate date B, the employer should add one year to the termination date. Whichever of the two dates is later in time is the date until which that employee’s form I-9 must remain in the employer’s employment eligibility verification files.

Official Inspection of I-9 Records

Upon request, all Forms I-9 subject to the retention requirement must be made available in their original form or on microfilm or microfiche to an authorized official of the Bureau of Immigration and Customs Enforcement, Department of Labor, and/or the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices. The official will give employers at least 3 days advance notice before the inspection. Original documents (as opposed to photocopies) may be requested.

Form I-9 Requirements of New Owners of Existing Businesses

In a case where a new owner of a business is a successor in interest, having acquired an existing business, the new employer may keep the acquired employer’s I-9 records rather than complete new Forms I-9 on employees who were also employees of the acquired employer. However, since the new employer would be responsible for any errors, omissions or deficiencies in the acquired records, it may choose to protect itself by having a new Form I-9 completed for each acquired non-exempt employee and attached to that employee’s original Form I-9.

The I-9 Form and Rehires

Re-hires are an exception to the general rule about completing an I-9 form for every person you hire. In the case of re-hires, if the original I-9 form is less than three years old, you can simply ask the re-hire to confirm that the information on the form is still accurate. If so, you should put the re-hire date in Section 3 of the form and sign and date that portion of the form. If the original I-9 form is more than three years old, or if no form was obtained or retained previously, then you should complete a new I-9 form.

Remote Hires

It is not unusual for a U.S. employer to hire a new employee who doesn’t physically come to that employer’s offices to complete paperwork. In such cases, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountant, attorneys, personnel officers, foremen, etc. An employer should choose an agent cautiously, since it will be held responsible for the actions of that agent. Note: Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.

Service Providers

Some business entities contract with professional employer organizations (PEOs) to handle the personnel and benefits aspects of the business. This may include completion and retention of Forms I-9. Where the business entity and the PEO are “co employers,” one Form I-9 need be completed between the co-employers for each employee who was simultaneously hired by the co-employers. A business entity and PEO will be deemed a “co-employer” if, among other things, an employer/employee relationship is said to exist between the business entity and PEO on the one hand, and the individual on the other, even though the employee is only performing one set of services for both co-employers. Therefore, the authority to hire or terminate employment would have to be in the hands of both the business entity and the PEO. Since both entities are employing the individual, however, both entities remain equally responsible for meeting the Form I-9 requirements and equally liable for any failures to meet those requirements. Accordingly, the employer is fully responsible for errors, omissions, and deficiencies in the PEO’s processing.

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Penalties for I-9 Deficiencies

Violation of the I-9 paperwork requirements may result in a penalty of $110 to $1,100 for each individual for whom verification was improper or omitted. Unlike knowing employment or continuing employment violations, for paperwork violations, the penalties do not increase for repeat offenders. On the other hand, an employer that entirely ignores the I-9 process could be subject to pattern or practice liability, which might result in a fine of up to $10,000 and/or a six-month prison sentence. Although INS proposes a penalty by issuing a Notice of Intent to Fine, the employer has the right to a hearing before an administrative law judge, or ALJ, who ultimately sets the penalty. The ALJ may ignore the fine proposed by INS and make a separate determination of what fine is appropriate. In doing so, the ALJ will consider the following factors:

  1. Size of the employer’s business
  2. Good faith of the employer
  3. Seriousness of the violation
  4. Whether the employer should have known that the employment was unauthorized
  5. Past history of IRCA violations