Form I-9, the Employment Eligibility Verification, is a U.S. Citizenship and Immigration Services (USCIS) form used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment.
Both employees and employers (or authorized representatives of the employer) are obliged to complete the form. Employees have to attest their employment authorization and also present their employer with acceptable documents proving identity and employment authorization. The employer has to examine the employment eligibility and identity documents an employee presents to determine whether they appear to be genuine and record the document information on the Form I-9.
Employers need to retain original I-9 forms for three years after the date of hire, or one year after the date employment ends, whichever is later. The forms should be stored separately from other personnel files. and made available for inspection by authorized government officers.
In completing form I-9, prospective employees attest, under penalty of perjury, that they belong to one of the following categories:
a U.S. citizen
a non-US citizen national,
a lawful permanent resident, or
an alien authorized to work.
The USCIS offers a Spanish version of The Handbook for Employers: Instructions for Completing Form I-9 (M-274).
The Spanish Handbook for Employers provides comprehensive answers to questions about Form I-9, instructions on how to complete and retain Form I-9, lists of acceptable employment authorization and identity documents, and gives specific guidance for recruiters.
All U.S. employers must ensure proper completion of Form I-9.
When an offer of employment is accepted, the employee must complete Section 1 of the form no later than the first day of work for pay, or before the first day of work, if the employer has offered the individual a job and if the prospective employee has accepted it.
Section 1 is filled by employees who need to list their full legal name, middle initial and maiden name, if applicable. They must provide their existing address and date of birth. Employees do not have to give their social security number unless the employer uses E-Verify. The employee must attest under the penalty of perjury his/her citizenship or employment-authorized immigration status, the Alien or Admission Number, if applicable, and the date employment authorization expires. Employees have to sign and date Section 1, certifying the information as true. They have to sign the form even if a translator assists in the preparation of Section 1. The translator must also provide his or her name, address and signature and date the form.
Employers need to review the information that the employee has provided in Section 1 and ensure that all required fields are completed. Otherwise, they may be subject to penalties under federal law. If there are any errors in Section 1, employees have to make necessary corrections, initial and date them.
Section 2 must be filled by the employer no later than three business days of the employee’s first day of work for pay. The employee must present the employer with unexpired original documentation that shows identity and employment authorization. It is important to note that the employee chooses which documentation to present. An employer cannot specify which documentation the employee uses because doing so would subject the employer to a claim of unlawful discrimination.
Employers physically examine each original document the employee presents in order to determine if the document reasonably appears to be genuine and relates to the person presenting it. It is important to make sure the person who examines the documents is the same person who attests and signs Section 2.
Employers enter the document title, issuing authority, number, and expiration date in Section 2 from original documents supplied by the employee. If employers choose to make copies of the documents, they need to do so for all employees, regardless of national origin or citizenship status Otherwise, they may be in violation of anti-discrimination laws. Employers return the original documents to employees.
After filling in the date employment begins and information in the certification block, employers sign and date Form I-9.
Employers may designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on their behalf, including a notary public, to complete Section 2. However, anyone else who completes Form I-9 on their behalf must carry out full Form I-9 responsibilities. It is not acceptable for the designated person to physically examine the employee’s employment authorization and identity documents, and leave Section 2 for employers to complete.
Employers are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on their behalf.
Employees who present documents that establish a temporary right to work must be reverified on or before the expiration date of the document that controls work authorization.
Employers must track the expiration dates of work authorizing documents to ensure reverification is completed prior to their expiration and it is recommended that employers notify employees of the upcoming expiration up to six months in advance. Employers may not continue to employ employees beyond the date a temporary work authorization document expires without updating/reverifying their I-9.
Upon review of the original documents, the employer must complete Section 3 by clearly and accurately recording the required information from the documents, including any expiration dates that appear on the documents.
Employers must complete the Reverification and Rehires section by entering his/her own full name and signing and dating the I-9 Form, acknowledging, under penalty of perjury, that the employee appears to be authorized to work and that she/he has reviewed the original documents presented to confirm that they relate to the employee. Section 3 should be completed, signed and dated on or before the date of expiration of the previous work authorizing document.
Section 3 may also be used to record a change in employees’ names (as in a marriage) or for employees who are rehired before the I-9 retention period expires (so long as the documents originally presented remain valid at the time of rehire). Alternatively, the rehire process may be completed by executing a new Form I-9.
Employers must maintain their own I-9 records for possible inspection by the federal government. This means they have to be prepared to produce I-9 records for all current employees as well as for terminated employees who fall within the retention period – three years from the date of hire or one year from the date of termination, whichever is later.
I-9 records may be stored at the worksite or at other location, but the storage choice must make it possible for the documents to be transmitted to a central location quickly. Official notices for the production of documents for inspection are legally required to provide 72 hours’ notice.
Employers should avoid storing I-9 records in employees’ personnel files because it may be difficult to extract records from individual personnel files in time to meet a three-day deadline for official inspection, particularly if a large number of employees are involved. Therefore, systemized storage is critical to complying with retention requirements, monitoring reverification dates and being prepared for a government audit.Electronic storage and retention of I-9 forms can help you reduce time allocated to administration and eliminate clerical errors that result in fines during an audit.
With the form, prospective employees must provide documents that prove their eligibility to work. A variety of documents is acceptable in a specified combination with another. The prospective employee must provide:
One document that establishes both identity and employment eligibility (List A) or
One document that establishes identity (List B) together with another document that establishes employment eligibility (List C).
These documents establish identity and eligibility to work in the U.S. and are considered acceptable proof of both.
In the absence of any of the above documents, an employee would have to present two others, one for proof of identity and the other for proof of employment eligibility. The following documents can establish an employee’s identity:
Employees who are younger than age 18 and who are therefore unable to present any of the above documents can provide age-appropriate documents instead, including:
One of these documents must be presented in addition to a document from List B.
Rehiring workers depends on company policy and on the completion date of the previous I-9.
Employers need to make a policy decision: to use Section 3 of the existing I-9 when possible or to skip the analysis and simply do new I-9s for all rehires.
Employers may use Section 3 of the I-9 instead of doing a new I-9 if they are rehiring the employee within three years of the date that the previous Form I-9 was completed.
If employees previously indicated that they were aliens authorized to work for a limited period, and that period has expired, employers also need to see a List A or C document and must record the document information in Section 3 – this is known as reverification. If employers are using Section 3 to reverify, they need to ensure that they are using the most recent version of the Form I-9.
If it has been more than three years since the original I-9 was completed, employers must complete a new I-9, treating the employee as a new hire for I-9 purposes.
When employers hire remote employees, they need to ensure continued compliance with Form I-9 requirements.
When employers are unable to be physically present with employees for document verification, such as situations where employers are onboarding remote employees, they have to designate authorized representatives to complete Form I-9.
When employers designate authorized representatives, those representatives, including personnel officers, foremen, agents or notaries, need to carry out all Form I-9 responsibilities. This means that they have to physically examine the documents to determine if the documents are from the List of Acceptable Documents attached to Form I-9 and whether the documents appear to be genuine and relate to the employee that presented them. Reviewing documents via webcam is not acceptable.
According to USCIS, employers remain liable for any violations in connection with Forms I-9 where authorized representatives complete the forms. To that end, it is critical that employers understand proper Form I-9 procedures and ensure any authorized representatives are following the necessary protocol.
If employers designate authorized representatives for Form I-9 purposes, it is important to have standard procedures and instructions in place. The instructions should include steps for the representative to follow, include guidance for the employee on what to do after the representative has completed his or her role and instruct the representative to sign any additional business documentation when necessary.
When employers designate notaries to act as authorized representatives for I-9 completion, the notaries are not acting in their notary public role for this process. Instead, the notaries are acting as authorized representatives of employers and therefore should not provide notary seals on Form I-9.
Employers can remain compliant with Form I-9 requirements even when they are unable to be physically present for the I-9 process. However, it is critical for both employers and their designated representatives to follow correct procedures and prevent potential penalties in the event of an I-9 inspection by the government.
Electronic I-9 administration enables remote completion of Section 1 of Form I-9, ensuring remote workers’ I-9 forms are submitted timely.
E-Verify is an Internet-based system that compares information entered by an employer from an employee’s Form I-9, Employment Eligibility Verification, to records available to the U.S. Department of Homeland Security and the Social Security Administration to confirm employment eligibility.
E-Verify is the only free, fast, online service of its kind that electronically confirms an employee’s information against millions of government records and provides results in a few seconds.
E-Verify is voluntary except for employers with federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause requiring the use of E-Verify for a legal workforce. States that already have laws regarding E-Verify use include Alabama, Arizona, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, and Virginia.
However, legislation introduced in Congress in 2017 – Legal Workforce Act (H.R. 3711) – hopes to make the E-Verify electronic employment eligibility verification system a mandatory and permanent requirement for U.S. employers to ensure the workers they hire are legally eligible to work in the United States.
Mandatory nationwide use of E-Verify was included in the White House Fiscal Year 2018 Budget that called for “expanding worksite enforcement strategies by mandating nationwide use of the E-Verify system” to reduce illegal employment.
If the employee decides to contest the mismatch, he/she must contact the appropriate agency to resolve the mismatch within eight federal government work days from the referral date.
If the mismatch is resolved, an Employment Authorized result will be returned. Otherwise, a final non-confirmation will be sent and the employee can be terminated based on E-Verify.
Upon inspecting forms I-9 for compliance, Immigration and Customs Enforcement (ICE) agents or auditors may find technical or procedural violations. In this case, an employer is given ten business days to make corrections.
An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
Monetary penalties for knowingly hire and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.
While the I-9 process may appear simple, it’s important to ensure all the information employees provide is genuine in order to avoid potential audits and noncompliance fees. Also, there are many common mistakes and human errors that can be made while completing and maintaining I-9 records. If employers fail to complete or maintain I-9 documentation correctly, this may lead to non-compliance with Immigration and Customs Enforcement (ICE) rules, resulting in harsh financial penalties.
Employers may receive a Tentative Nonconfirmation (TNC) when either the Department of Homeland Security (DHS) or Social Security Administration (SSA) identifies something entered on the I-9 as not matching their records.
An SSA TNC may be issued because the employee’s:
A DHS TNC may be issued because the employee’s:
When E-Verify displays a TNC case result, the employer must first notify the employee of the TNC. To notify the employee, the employer must print the Further Action Notice (FAN) and provide to it to the employee. The Further Action Notice is a critical document that lets the employee know:
The Further Action Notice also provides instructions to the employer for notifying an employee of a TNC. Specifically, the employer must:
Employees also have certain rights and responsibilities after having received a TNC. After receiving a TNC, the employee must decide whether to contest it and indicate so on the Further Action Notice.
An employee who chooses to contest an SSA TNC must visit an SSA field office within eight federal government working days to begin resolving the TNC. An employee who chooses to contest a DHS TNC must call DHS within eight federal government working days to begin resolving the TNC.
If the employee chooses not to contest a TNC, the case then results in Final Nonconfirmation, and the employer may terminate the employee based on E-Verify. At this point, the employer must close the case in E-Verify and indicate whether the employee was terminated.
An employee who chooses to contest a TNC must visit an SSA field office in person if a SSA TNC is received or call DHS within 8 federal government working days for a DHS TNC. When the employer refers the case, E-Verify will generate a Referral Date Confirmation which the employer must print and give to the employee. The Referral Date Confirmation provides the employee the date by which he or she must visit an SSA field office or call DHS to resolve the TNC.
It is also important for the employer to provide a copy of the Further Action Notice to the employee so they can refer to it for instructions to resolve the mismatch and show a copy of it to the representative if they visit an SSA field office.
If the employee contests a DHS TNC issued because of a photo mismatch (meaning the employer indicated that the photo displayed by E-Verify did not match the photo on the employee’s document), the employer must also make a copy of the document the employee provided and submit it to DHS for review. The employer may either scan and upload an image of the document or send a copy of the document via express mail at the employer’s expense.
The employee must be allowed to continue working while he or she resolves the mismatch. In addition, an employer may not take any adverse actions, such as delaying training or reducing work hours, against an employee because of a TNC while the case status is an Employee referred to SSA or DHS.
Once the employer refers the case in E-Verify, the employee has 8 Federal Government working days to visit an SSA field office or call DHS. When visiting SSA or contacting DHS, the employee should have the Further Action Notice along with any required documents. The Further Action Notice explains what documents are required to resolve the different types of possible mismatches.
If the employee does not take the required action to resolve the TNC within 10 Federal Government working days after the case is referred, E-Verify will automatically change the employee’s case status to SSA or DHS Final Nonconfirmation. Only after an employee receives an SSA or DHS Final Nonconfirmation may the employer terminate the employee based on E-Verify.
If the employee is successful in resolving the mismatch, SSA or DHS will update its records and the case in E-Verify. It may take up to two Federal Government working days after a mismatch is resolved for the employer to see the updated case status in E-Verify.
E-Verify features a case status alert that will notify the employer of an update in a case when the employer logs in to E-Verify.
In most SSA TNC cases, SSA will update the case with a final case result, which can be either Employment Authorized or SSA Final Nonconfirmation. Occasionally, SSA may require the employer, employee or DHS to take additional action before a final case result can be issued. In these cases, SSA will update the case to reflect one of the following results:
The above three case statuses are considered temporary. While a case is in continuance, the employer cannot terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against the employee because the employee received a TNC.
In most DHS TNC cases, DHS will update the employee’s case with a final case result, which can be Employment Authorized, DHS No Show or DHS Final Nonconfirmation. Occasionally, DHS may require the employee to take additional action before issuing a final case result. In these situations, DHS will update the employee’s case to Case in Continuance.
In rare cases, DHS may need more than 10 Federal Government working days to confirm employment eligibility. This can happen for a number of reasons, including if an employee has lost the document that was presented for I-9 completion and has applied for a replacement document. The employee must contact DHS and attempt to resolve the TNC before DHS can put a case in continuance.
Case in Continuance is considered a temporary case status. While a case is in continuance, the employer cannot terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against the employee because the employee received a TNC.
Once the employee has received a final case status, such as Employment Authorized or SSA or DHS Final Nonconfirmation, the employer must close the case in E-Verify. If the employee received an SSA or DHS Final Nonconfirmation, the employer must also indicate whether the employee was terminated.Using an electronic I-9 solution integrated with E-Verify will enable automatic bulk closing of resolved cases and save you hours of in-house work dedicated to maintaining compliance.
Even though E-Verify is a voluntary program, it could soon become mandatory nationwide under comprehensive immigration reform. Statistics show that 98.93% of E-Verify cases are automatically confirmed as work authorized, and for the ones that aren’t, only 0.27% remain unresolved. This proves that E-Verify is
Using automated I-9 solutions for creating, managing and storing Form I-9s that provide the best way to handle I-9 compliance. Employers can save time and reduce the potential for errors by relying on an electronic I-9 solution, fully integrated with E-Verify, which completes an electronic I-9 form and simultaneously begins the E-Verify process. Furthermore, electronic solutions ensure the management, preparation, document storage, and auditing of the Form I-9 to meet the necessary guidelines.Electronic I-9 administration helps you maintain I-9 and E-Verify compliance and get efficient and accurate employment verification of new hires.
The Immigration Reform and Control Act which introduced the requirement leading to the promulgation of the I-9 form also included anti-discrimination provisions. Under the Act, most U.S. citizens, permanent residents, temporary residents, asylees or refugees who are legally allowed to work in the United States cannot be discriminated against on the basis of national origin or citizenship status. This provision applies to employers of three or more workers and covers both hiring and termination decisions.
An employer cannot refuse to hire a candidate because his I-9 revealed that he was a non-citizen rather than a U.S. citizen. For this reason some immigration lawyers advise companies to avoid requiring an I-9 until a candidate is hired rather than risk a lawsuit.
A company cannot ask an employee to provide a passport rather than another document because anti-discrimination provisions require that employers enforce I-9 compliance in a uniform manner. Also, employers cannot assume that the employee is unauthorized to work just because the individual either could not bring the proof of employment authorization or has brought unacceptable documents until the start date of the employment.The Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) is a section within the Department of Justice’s Civil Rights Division that enforces the anti-discrimination provision of the Immigration and Nationality Act (“INA”). The OSC can help workers by calling employers and explaining proper verification practices and, when necessary, by providing victims of discrimination with charge forms. Upon receipt of a charge of discrimination, OSC investigations typically take no longer than seven months. Victims may obtain various types of relief including job relief and back pay.
The OSC investigates the following types of discriminatory conduct under the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.
With respect to hiring, firing, recruitment or referral for a fee by employers with four or more employees, employers may not treat individuals differently because they are or are not U.S. citizens or work-authorized individuals. U.S. citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. However, permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order or government contract is permissible by law.
With respect to hiring, firing, recruitment or referral for a fee by employers with more than three and fewer than fifteen employees, employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding foreign. All U.S. citizens, lawful permanent residents and work authorized individuals are protected from national origin discrimination. The Equal Employment Opportunity Commission has jurisdiction over employers with fifteen or more employees.
Relating to verifying the employment eligibility of employees, employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. U.S. citizens and all work authorized individuals are protected from document abuse.
Individuals who file charges with OSC; who cooperate with an OSC investigation; who contest action that may constitute unfair documentary practices or discrimination based upon citizenship, immigration status, or national origin; or who assert their rights under the INA’s anti-discrimination provision are protected from retaliation.
In 1986, President Reagan enacted the Immigration Reform and Control Act (IRCA) to curtail illegal immigration. IRCA mandates that U.S. employers must verify the employment eligibility status of newly hired employees, and makes it illegal for employers to knowingly recruit, hire or employ unauthorized workers.
In response to the law, the Immigration and Naturalization Service (INS), now an integrated component of the Department of Homeland Security (DHS), created Form I-9 and mandated its accurate and timely completion by all U.S. employers and their employees.
The law changed the hiring landscape for employers in two major ways – IRCA imposed significant legal, financial and public relations risks for noncompliance and it forced employers to enforce the immigration laws.With I-9 solution fully customizable to meet your needs, you will take control of I-9 compliance, minimize HR administration, and replace paperwork, physical filing and maintenance with compliant, organized and completely paperless process.
Form I-9 allows employers not only to determine the eligibility of employees to work in the United States but also to prevent discrimination against people of foreign origin and citizenship. Given the increased intensity and frequency of Form I-9 audits by U.S. Immigration and Customs Enforcement, employers need to be certain they are compliant with regulations for Form I-9. Otherwise, they can face penalties or even lawsuits from the government.
The guidelines for Form I-9 procedures are very specific. If all sections of the Form I-9 are not filled out completely and correctly, dated accurately, updated with changes and corrections, reverified when necessary, and retained according to federal guidelines, businesses are at high risk of fines and criminal penalties.
To ensure that businesses maximize compliance with I-9 and E-Verify and to prevent potential fines, one of the best practices for employers is to rely on an electronic I-9 solution as an invaluable tool for tracking and storing documentation. Electronic I-9 software helps minimize risk with its built-in quality control mechanisms, easy access to stored I-9s, automatic notification of employment authorization expiration dates, integration with E-Verify and data security measures. Therefore, I-9 process, that is usually perceived as complex and daunting, becomes simple, secure and efficient.The information contained within this document is general in nature and is not intended and should not be construed as legal, HR, or opinion by Emtpech. Please contact Emptech or another subject matter professional prior to acting on any information provided in this document. We recommend caution when contemplating acting on any information provided in this document as it may not be applicable or suitable for the specific viewer’s needs. Emptech assumes no obligation to update any viewer of any changes in law, rule, or regulation that could affect the information contained herein. Without express written permission from Emptech, no part of this document may be reproduced, re-transmitted, or otherwise redistributed in any form or by any means, including, but not limited to photocopying, electronic, facsimile transmission, or using any other information storage and retrieval system.