Mary J. Bosworth

Attorney at Law

What is the I-9 Form and Why is it Required?

The I-9 form is the Employment Eligibility Verification Form issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS).  All US employers must complete and keep an I-9 for all employees hired in the US after November 6, 1986.

This is how a US employer documents that it has verified whether an employee has permission to work in the US.  The employee must provide documents to prove that he or she has the right to work in the US and the employer must review and verify those documents.   Both the employee and the employer must sign the form.

The I-9 Process

An employer’s obligation to review documents provided by an employee is not triggered until the employee has been hired.  Only then is the new employee required to produce a document of his or her choice from List A or a combination of documents from List B and List C on the reverse side of the I-9 form to verify identity and work eligibility.

An employer may not use the I-9 process to pre-screen employees for hiring. Additionally, an employer may not demand more or different documents than the ones an employee chooses to present, as long as the documents provided are acceptable under the I-9 requirements. An employer may not consider the fact that documents have future expiration dates as a reason not to hire.  Employers are not permitted to demand a particular document or combination of documents. The employer must accept any document from List A or a combination of documents from Lists B and C.  Likewise, employers may not require any more documentation than the minimum necessary to verify identity and work eligibility.

Standards of Review

The employer must review and accept documents that reasonably appear to be genuine and to relate to the person presenting them (e.g., the name on the Social Security card should be compared to the name on the state driver’s license and the photo on the driver’s license compared to the person who presented the documents). Employers may reject documents if they do not reasonably appear to be genuine and ask employees who present questionable documents for other documents that satisfy the I-9 requirements.

However, an employer does not become a fraudulent document inspector and is only required to make a “reasonable” assessment of the validity of the documents presented.  Employers should be careful in this regard, as “green cards” have changed color over the years and some have expiration dates (two or ten years), while others do not.  Both the older and newer versions may be valid. The standard used for determining whether a document is genuine is whether a reasonable person would know that the document is fraudulent.

Employees who are unable to present acceptable documents should be terminated. Employers who choose to retain such employees may be subject to penalties for improper completion of the form or for “knowingly continuing to employ” unauthorized workers if such workers are in fact unauthorized.

An I-9 is not necessary for:

  • Employees hired before  November 6, 1986, and continuously employed by the same employer;
  • Individuals performing casual domestic service in a private home that is sporadic, irregular or intermittent;
  • Independent contractors ;
  • Temporary or contract workers, provided  by temporary agencies or employee leasing services (In these cases, the temporary agency or labor provider is the employer for I-9 purposes); or
  • Employees not physically working in the US.

Note:

  • An employer is not permitted under the law to contract for the labor of an individual whom he knows is not authorized for employment. Employers who violate this prohibition may be subject to civil and criminal penalties.
  • Employers are not permitted to request more or different documents than are required or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual presenting the document.
  • An employee may not be able to provide a social security number if the Social Security Administration has not yet issued the individual a social security card.   Providing a Social Security number on the I-9 is voluntary for all employees, unless the employer is participating in the E-Verify program, which requires an employee’s Social Security number for employment eligibility verification.

Retention of I-9 Records

All current employees must have an I-9 on file with the employer.  An employer must retain the I-9 form of each employee for three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later. I-9s (and copies of the documents produced, if copied) should be kept in a separate file, not in the employee’s personnel file.

An employer may, but is not required to, copy a document (front and back) presented by an individual for the purpose of complying with the I-9 requirements. If a copy is made, it must be retained with the I-9. The copying of any document and retention of the copy does not relieve the employer of the requirement to fully complete Section 2 of the I-9. If employers choose to keep copies of I-9 documentation, then it should be done for all employees, not only of individuals of certain nationalities or citizenship status. To do otherwise may be unlawful discrimination under the Immigration and Nationality Act.

Upon request, all I-9 forms must be made available to an authorized official of the Department of Homeland Security, the Department of Labor, and/or the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices.  An employer has three (3) days to produce the I-9s and does not have to permit immediate access to its I-9 files.  An employer should never permit a government inspector to take away original documents, but instead make copies.  If an employer is confronted with an inspection demand, the best course is to immediately contact legal counsel to coordinate inspection and production of copies of the I-9s on file.

Missing I-9 Forms

An employer who discovers that an I-9 form is not on file for an employee should request the employee to complete section 1 of an I-9 form immediately and submit documentation as required in Section 2. The new form should be dated when completed.  Do not post-date it. When an employee does not provide acceptable documentation, the employer must terminate his or her employment or risk being subject to penalties for “knowingly continuing to employ” an unauthorized worker, if the individual is not authorized to work.

Responsibility of the Employee

Employees need to provide the information requested in Section 1 between the day he or she is hired and the first day of work. In particular, the employee must attest to their status by checking the applicable box indicating that they are a(n):

  • Citizen/national of the United States (top boxes),
  • Lawful permanent resident with a “green card” (middle box), or
  • Alien authorized to work in the United States until a specified date (bottom box).

Employees must sign and date this section of the I-9 form when completed.

Employer Review and Verification

The second part of the form requires the employer to list the documents that were produced by the worker to verify his or her identity and employment eligibility.  This should be done within three business days of the employee’s first day of work. There are three groups of documents that a worker may use for this purpose. The documents that can be presented by employees are listed on the reverse side of the I-9 form. A worker may choose to provide one document from List A  (which establishes both identity and work authorization), or he/she may choose to provide one from List B  (which establishes identity) and one from List C (which establishes work eligibility). Documentation must be rejected if it is expired, with two exceptions: the U.S. passport or passport card (a List A document) and all List B documents.

Employers cannot refuse to hire an individual because the individual’s document has an expiration date (as long as the document itself has not expired, except for the two exceptions above).
Original Documents Only: The employer must personally review the original document(s) presented by the employee to demonstrate his or her identity and eligibility to work in the US.  Photocopies or numbers representing original documents are not acceptable. Exception: A certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the US bearing an official seal is acceptable (List C). All identifying information, including the document title, the issuing authority, the document number, and/or the expiration date (if applicable) must be provided in full.

If you have hired a non-immigrant student or exchange visitor, such as a J-1 or F-1 student, see USCIS publication M-274, Handbook for Employers: Completing the I-9 (Employment Eligibility Verification Form) for more specific information on which documents are acceptable proof of employment eligibility.

Updating and Reverification

Employers are required to reverify employment eligibility when an employee’s employment authorization or evidence of employment authorization recorded in Section 2 has expired. An employer may also reverify employment authorization, in lieu of completing a new I-9, when an employee is rehired within three years of the date that the I-9 was originally completed and the employee’s work authorization or evidence of work authorization has expired.  (The reverification requirement does not apply to the U.S. passport, passport card, or Alien Registration Receipt Card/Permanent Resident Card (Form I-551) (aka “green card”).) (Note that temporary evidence of permanent resident status in the form of an unexpired foreign passport containing a temporary I-551 stamp is subject to the reverification requirement.)

Reverification Process

No later than the date that employment authorization or employment authorization documentation expires, employers must reverify employment authorization on Section 3 of the I-9, or by completing a new I-9 form to be attached to the original one.  To reverify expired status (Section 1) and/or expired work authorization document(s) (Section 2), an employee may present any currently valid List A or List C document.  (Note: Receipts showing that the employee has applied for an extension of an expired employment authorization document are not acceptable.)

Note: For reverification purposes, employees are not required to present a new version of the expired document that was presented to satisfy Section 2.  Any document or combination of documents that would be acceptable to demonstrate work eligibility/authorization under Section 2 may be presented for reverification purposes.

Where Reverification is not Required

US Citizens and noncitizen nationals never need reverification.  Permanent Resident Cards (aka Alien Registration Receipt cards, Form I-551,  or “green cards”) are issued to lawful permanent residents and conditional residents and should not be reverified when the cards expire. Temporary evidence of permanent resident status in the form of a temporary I-551 stamp in an unexpired foreign passport is subject to reverification. (This is due to the temporary nature of this document.)  Likewise, List B documents need not be reverified when they expire.

The employer is not required to update the I-9 when an employee changes his or her name.  I-9 regulations do not require an employee to present documentation to show a name change.  However, it may be advisable to ask the employee about the reason for the name change to be assured of the employee’s identity and the veracity of the claim of a name change. If provided by the employee, the employer may accept evidence of the name change to keep with the I-9, so that the employer’s actions are well-documented if the government asks to inspect I-9 files.

If the employee is authorized to work for a specific employer, such as an H-1B or L-1 nonimmigrant, and has filed an application for an extension of stay, he or she may continue employment with the same employer for up to 240 days (eight months) from the date the authorized period of stay expires.

Rehires

Employers may reverify information of an employee rehired within 3 years of the date of the initial execution of the I-9 as an alternative to completing a new I-9. If the rehire’s basis of employment eligibility, as listed on the retained I-9, remains the same, then the employer may update the previous I-9.  If the basis of work eligibility has expired, the employer must reverify. To update or reverify on the previously completed I-9, employers must complete Section 3 items: A (name), B (date of rehire), and C (new documentation) in full, as needed. In this section, as in Section 2, it is important that the person who examines the documents on behalf of the employer personally sign at the bottom of the form.  Employers must reverify the employee if the version of the I-9 form previously used is no longer valid.

Penalties for Prohibited Practices

Employers who violate the law may be subject to:

  • civil fines
  • criminal penalties (for a pattern or practice of violations), including prison
  • debarment from government contracts

Notice of Intent to Fine

The Department of Homeland Security, US Immigration and Customs Enforcement (ICE) is authorized to investigate whether employers have knowingly employed unauthorized aliens and failed to properly complete, present or retain the I-9 form for employees. If ICE believes that violations have occurred, ICE may issue a Warning Notice, a Technical or Procedural Failures Letter notifying the employer of technical or procedural failures in need of correction, or a Notice of Intent to Fine (NIF).

In cases where a NIF is issued, employers may request a hearing within 30 days of service of the NIF to contest the NIF before an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO), Executive Office for Immigration Review, US Department of Justice. Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within 30days, ICE will issue a Final Order to cease and desist and to pay a civil fine. After a Final Order is issued, the penalty is unappealable. If a hearing is requested, ICE will file a complaint with OCAHO to begin the administrative hearing process which may end in settlement, dismissal, or a Final Order for civil fines.

Hiring or Continuing to Employ Unauthorized Alien(s)

An employer found to have knowingly hired, recruited or referred for a fee, or continued to employ an unauthorized alien for employment in the US shall be ordered to cease and desist and to pay a fine. An employer can be fined anywhere from $375 to $16,000 per unauthorized alien.  (Repeat offenses trigger higher fines.)

These penalties are not limited to employees, but also cover an employer’s use of contract labor known to them to be unauthorized to work in the US. If an employer can demonstrate compliance with the I-9 form requirements, this is a good faith defense to a charge of knowingly hiring an unauthorized alien, unless the government can prove otherwise.

Failure to Comply with I-9 Requirements

Employers who fail to properly complete, retain, and/or present I-9 forms for inspection as required by law may be subject to a fine of $110 to $1,100 per employee whose I-9 is not properly completed, retained, and/or presented. The following factors are considered when deciding on the amount of the fine:

  • the size of the business of the employer being charged;
  • the good faith of the employer;
  • the seriousness of the violation;
  • whether or not the individual was an unauthorized alien; and
  • any history of previous violations by the employer.

An employer can still be fined for paperwork violations, even if all employees are found to be eligible to work in the US.

Unlawful Discrimination

If an Office of Special Counsel for Unfair Employment-Related Discrimination (OSC) or Equal Employment Opportunity Commission (EEOC) investigation reveals employment discrimination covered by the Immigration and Nationality Act, the employer will be ordered to stop the practice and may be ordered to take one or more of the following steps:

  • Hire or reinstate, with or without back pay, individuals directly injured by the discrimination;
  • Lift any restrictions on an employee’s assignments, work shifts, or movements;
  • Post notices to employees about their rights and about employers’ obligations;
  • Educate all personnel involved in hiring and in complying with the employer sanctions and anti-discrimination laws;
  • Remove a false performance review or false warning from an employee’s personnel file.

Employers may also be ordered to pay fines of $250 to $10,000 per individual discriminated against.  (Subsequent offenses trigger higher fines.).

Document Abuse

Document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship status in the I-9 process.  Document abuse can be broadly categorized into four types:

  1. Improperly requesting employees to produce more documents than are required to establish the employee’s identity and employment authorization;
  2. Improperly requesting employees to present a specific document, such as a “green card,” to establish identity and/or employment authorization;
  3. Improperly rejecting documents that reasonably appear to be genuine and relate to the employee presenting them; and
  4. Improperly treating groups of applicants differently when completing the I-9, like requiring certain groups of employees who look or sound “foreign” to present certain documents the employer does not require other employees to present.

These practices may be unlawful document abuse. When employers are found to have committed document abuse, they may be fined $100 to $1,000 for each individual determined to have suffered such abuse.

For More Information

Consult USCIS publication M-274, Handbook for Employers: Completing the I-9 (Employment Eligibility Verification Form) (Rev. 6/01/11).

Also see the USCIS website specifically for I-9 information at www.uscis.gov/I-9Central.

Revisions to the I-9 form are coming! A revised version of the I-9 form is in draft form and the public is invited to comment on the proposed changes until May 29, 2012.  Key revisions to the I-9 include blocks for the employee’s email address and phone number, both of which are optional.  Also, the draft version includes space for the employee’s foreign passport number and country, but only where an employee has provided an I-94 number also.  Go to www.uscis.gov/I-9Central for more information.

If you have any questions about I-9 requirements or your situation, please contact Attorney Mary J. Bosworth now.

Author: Mary Bosworth

I am an attorney at law with decades of experience specializing in immigration, employment, family, and other practice areas. Attention to individual legal needs of every client are extremely important to my success as well as yours. Contact me to find out how I can help you.

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