I-9 Verification
Everything You Need to
Know about Form I-9
and I-9 Verification

Emptech's founder, Jeff Aleixo

Author

Jeff Aleixo

1. I-9 Verification Requirements

Form I-9

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. Within the I-9 verification process, the employer has to examine the employment eligibility and identity documents an employee presents in order 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.

USCIS Handbook for Employers M-274 is designed to supplement employers’ understanding and knowledge regarding various I-9 verification obligations. Therefore, it can be used as the main source of I-9 compliance information and instruction. A new version of the Handbook was issued in conjunction with the new Form I-9, which became mandatory on May 1, 2020. It offers clarification on several I-9 verification procedures, such as revised guidance for completing Form I-9 in specific situations. This includes F-1 foreign students changing status to H-1B and foreign workers with an automatic extension of a USCIS Employment Authorization Document (EAD). Furthermore, the new Handbook explains how an individual can serve as an authorized representative to complete Form I-9 on behalf of an employer.

Prerequisites for Employees

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.

I-9 Procedures in Spanish

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.

2. Instructions for Completing Form I-9

All U.S. employers must ensure proper completion of Form I-9.

Form I-9: Section 1 – Employee Information and Attestation

When an offer of employment is accepted, the employee must complete Section 1 of Form I-9 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.

INSTRUCTIONS FOR EMPLOYEES

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 or 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, signature, and date.

INSTRUCTIONS FOR EMPLOYERS

Employers need to review the information that the employee has provided in Section 1 and ensure that all required fields are completed. Otherwise, not adhering to I-9 compliance requirements may lead to penalties under federal law. If there are any errors in Section 1, employees have to make necessary corrections, initial, and date them.

Form I-9: Section 2 – The Employer Review and Attestation

PRESENTING ORIGINAL DOCUMENTATION

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.

I-9 VERIFICATION REQUIREMENTS FOR EMPLOYERS

Employers physically examine each original document the employee presents 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 violate anti-discrimination laws. Upon completing the I-9 verification process, 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.

DESIGNATING AUTHORIZED REPRESENTATIVE

Employers may designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on their behalf, including notary public, to complete Section 2. However, anyone else who completes Form I-9 on their behalf must carry out full I-9 verification 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.

According to the latest version of Form I-9, issued on January 31, 2020, employers may designate anyone to be an authorized representative to complete Section 2. However, employers are still liable for any violations in connection with the form or the I-9 verification process, including any violations of the employer sanctions laws committed by the person designated to act on their behalf.

Form I-9: Section 3 – Reverification and Rehires

I-9 REVERIFICATION INSTRUCTIONS

If employees present documents that establish a temporary right to work, they must be reverified on or before the expiration date of the document that controls work authorization.

Employers must track the expiration dates of work authorization documents to ensure reverification is completed before 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 or reverifying their Form 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.

CONFIRMING WORK AUTHORIZATION

Employers must complete the Reverification and Rehires section by entering their full name and signing and dating the Form I-9, acknowledging, under penalty of perjury, that the employee appears to be authorized to work. Thus, they also acknowledge that they have reviewed the original documents presented to confirm that they relate to the employee. To ensure I-9 compliance, section 3 must be completed, signed, and dated on or before the date of expiration of the previous work authorizing document.

SECTION 3 FOR REHIRES

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, as 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.

3. Form I-9 Retention and Storage

Employers must maintain their 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 other locations, 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 the time allocated to administration and eliminate clerical errors that result in fines during an audit.

4. Documentation for Proof of Identity or Employment Authorization

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).

LIST A—DOCUMENTS THAT ESTABLISH BOTH IDENTITY AND EMPLOYMENT ELIGIBILITY

These documents establish identity and eligibility to work in the U.S. and are considered acceptable proof of both.

  1. U.S. Passport or U.S. passport card,
  2. Form I-551, Permanent Resident Card or Alien Registration Receipt Card,
  3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV),
  4. Form I-766, Employment Authorization Document (EAD) that contains a photograph,
  5. For nonimmigrant aliens authorized to be employed based on their nonimmigrant status, a foreign passport with Form I-94 bearing the same name as the passport and an endorsement of their nonimmigrant status,
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

LIST B—DOCUMENTS THAT ESTABLISH IDENTITY

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:

  1. Driver’s license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address,
  2. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address,
  3. School ID card with a photograph,
  4. Voter’s registration card,
  5. U.S. Military card or draft record,
  6. Military dependent’s ID card,
  7. U.S. Coast Guard Merchant Mariner Card,
  8. Native American tribal document,
  9. Driver’s license issued by a Canadian government authority.

SPECIAL LIST FOR PERSONS WHO ARE MINORS

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:  

  1. School record or report card,
  2. Clinic, doctor, or hospital record,
  3. Day care or nursery school record.

LIST C—DOCUMENTS THAT ESTABLISH EMPLOYMENT ELIGIBILITY

One of these documents must be presented in addition to a document from List B.

  1. U.S. Social Security Card issued by the Social Security Administration, other than a card stating that it is not valid for employment,
  2. Certification of a report of birth issued by the U.S. Department of State (Forms DS-1350, FS-545, FS-240),
  3. Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing an official seal,
  4. Native American tribal document,
  5. U.S. Citizen ID Card (Form I-197),
  6. ID Card for use of a Resident Citizen in the United States (Form I-179),
  7. Unexpired employment authorization document issued by the Department of Homeland Security.  This does not include Form I-766, Employment Authorization Document, from List A.

5. Form I-9 for Rehires

Rehiring workers depends on the company policy and 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 Form I-9 for all rehires.

Employers may use Section 3 of the Form I-9 instead of doing a new one 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 Form I-9, treating the employee as a new hire for I-9 purposes.

Electronic I-9 verification helps you maintain E-Verify and I-9 compliance and get efficient and accurate employment verification of new hires.

6. I-9 for Remote Hires

When employers hire remote employees, they need to ensure continued I-9 compliance and follow the necessary I-9 verification requirements.

When employers are unable to be physically present with employees for I-9 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 compliance 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.

If employers designate authorized representatives for Form I-9 verification, 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.

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.

Remote I-9 Verification during the COVID-19 Pandemic

Reviewing documents via webcam was not acceptable until March 20, 2020, when DHS announced that it is temporarily amending the Form I-9 verification and reverification procedures. Due to the coronavirus outbreak, DHS allowed remote I-9 verification of the original documents through an electronic medium, such as an online meeting, email, or fax, provided employers retain copies of the documents, and complete the Form I-9 within three business days of an employee starting work. DHS extended this policy on May 19, June 19, and July 18, so the latest extension is set to expire on August 19.

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 and meet I-9 compliance requirements.

One of the changes introduced with the newest version of Form I-9 is that an authorized representative can be any person the employer authorizes to complete and sign the form on their behalf. This proved to be especially useful during the COVID-19 pandemic when many employers opted for the authorized representative model instead of the traditional I-9 process. 

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. With proper planning and safeguards, employers should be able to ensure I-9 compliance and minimize liability for violations in connection with the Form I-9 itself or the verification process.

To that end, electronic I-9 verification enables remote completion of Form I-9, ensuring remote workers’ I-9 forms are submitted timely. Transitioning to electronic I-9 verification provides a comprehensive technology platform to streamline this entire process, resulting in a proactive and compliant approach to onboarding remote employees.

7. E-Verify: The Web-Based I-9 Verification System

What is E-Verify

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.

Is E-Verify Mandatory

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, Florida, 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 in order to expand worksite enforcement strategies by mandating nationwide use of the E-Verify system to reduce illegal employment.

How Does E-Verify Work

  1. The E-Verify process can be started any time after the Form I-9 is completed but in no case later than three business days after the new hire’s actual start date.
  2. An employer inputs information from the I-9 form into E-Verify. Once all of the appropriate information has been put into the system, E-Verify compares the data to the records in the Social Security Administration and Department of Homeland Security’s databases.
  3. If the information matches, E-Verify will return an Employment Authorized result if the information matches. If a mismatch appears, E-Verify will return a Tentative Nonconfirmation (TNC) result. The vast majority of cases are resolved within 3 days.

If the employee decides to contest the mismatch, they 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.

In response to the rapidly spreading coronavirus, DHS introduced changes to E-Verify resolution deadlines. Given the numerous COVID-19 related closures and social distancing directives, the period given to employees to make initial contact with SSA or DHS was temporarily suspended.

Advantages of Using E-Verify for I-9 Verification

  1. E-Verify is available at any time and anywhere with a computer and internet access. Also, the employer can outsource E-Verify to a designated third-party agency.
  2. The results of the I-9 verification check are quickly produced.
  3. Possible errors and mismatches with government records can be accurately spotted.
  4. The E-Verify photo tool prevents document fraud and ensures the documents’ genuineness.
  5. It is a rebuttable presumption that companies that properly use E-Verify maintain I-9 compliance and adhere to employment eligibility laws.
Electronic I-9 solution fully integrated with E-Verify will help you save time, eliminate potential errors, and remain E-Verify compliant.

8. Different Types of I-9 Penalties

Upon inspecting forms for I-9 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 hiring 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 include 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, the seriousness of violation, whether the violation involved unauthorized workers, and the history of previous violations of I-9 compliance.

9. Form I-9 Compliance Guidance

While the I-9 process may appear simple, it is important to ensure all the information employees provide is genuine in order to avoid potential audits and non-compliance 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 maintain I-9 compliance or to complete I-9 documentation correctly, this may lead to non-compliance with Immigration and Customs Enforcement (ICE) rules, resulting in harsh financial penalties.

Tentative Nonconfirmation (TNC)

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:

  • Citizenship or immigration status was not updated with SSA,
  • The name change was not reported to SSA,
  • Name, Social Security number or date of birth is incorrect in SSA records,
  • SSA record contains another type of mismatch,
  • Information was not entered correctly by the employer.

A DHS TNC may be issued because the employee’s:

  • Name, A-number, I-94 number and/or foreign passport number were recorded incorrectly in DHS records,
  • U.S. Passport, Passport Card, driver’s license or state ID card information could not be verified,
  • Information was not updated in the employee’s DHS records,
  • Citizenship or immigration status changed,
  • The record contains another type of error,
  • Information was not entered correctly by the employer.

What Happens when E-Verify Returns A TNC Result

1. The employer notifies the employee of the TNC.

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 it to the employee. The Further Action Notice is a critical document that lets the employee know:

  • Whether the TNC is an SSA or DHS TNC. This is important because the employee must know which one of these agencies to visit or contact to take action.
  • Why the employee received a TNC.
  • What the employee’s options after having received a TNC.
  • What the employee must do to take action to resolve the TNC.

The Further Action Notice also provides instructions to the employer for notifying an employee of a TNC. Specifically, the employer must:

  • Print the Further Action Notice and review it privately with the employee.
  • Read the Further Action Notice to the employee if the employee cannot read.
  • Provide the employee with the English version and a foreign language version of the Further Action Notice if the employee does not fully understand English.
  • Sign the employer section on the first page of the Further Action Notice.
  • Instruct the employee to complete and sign the employee section on page two of the Further Action Notice.
  • Provide the employee a copy of the signed Further Action Notice and keep the original with the employer’s records.

2. The employee decides whether to contest the TNC.

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.

3. Employer refers the employee’s case to SSA or DHS.

An employee who chooses to contest a TNC must visit an SSA field office in person if an SSA TNC is received or call DHS within eight 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.

4. Employee takes action to resolve the mismatch.

Once the employer refers the case in E-Verify, the employee has eight 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.

5. Case updates in 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:

  • Case in Continuance: In rare cases, SSA may need more than 10 Federal Government working days to confirm an employee’s employment eligibility. This can happen when an employee has lost and has applied for a replacement document, such as a birth certificate. The employee must first visit SSA and attempt to resolve the TNC before SSA will put a case in continuance. Employers should check E-Verify regularly for status updates.
  • DHS Verification in Process: The employee may have resolved the discrepancy with SSA, but E-Verify cannot instantly confirm employment authorization because it needs to manually review the records in government databases. For cases requiring manual review, E-Verify will return a DHS Verification in Process response and in most cases provide I-9 verification results within 24 to 48 hours. No action is required by the employer or employee during this time. Employers should check E-Verify regularly for status updates.
  • Review and Update Employee Data: In some cases, SSA will prompt an employer to review and correct the information that was entered into E-Verify and update the case. This occurs when an employee who has received an SSA TNC visits SSA and SSA determines there are no errors in the employee’s record. This discrepancy may result from either of the following situations:
  • An employer typing error in E-Verify.
  • The employee provided incorrect information on the Form I-9, Employment Eligibility Verification form.

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 verification 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.

6. Employer closes the employee’s case in E-Verify.

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.

Maintaining I-9 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 an accurate, comprehensive, and verifiable way for employers to ensure a legal workplace for both employees who are verified as eligible to work in the U.S., and for potential employees because it speeds the hiring process. However, mistakes happen and can lead to TNCs, which is why employers need to undertake the recommended steps leading to I-9 compliance and free themselves from civil and criminal liabilities.

10. I-9 Verification Best Practices: Avoid I-9 Violations and Fines

  1. Using E-Verify to verify the employment eligibility of all new hires. By participating in E-verify, employers show they are being proactive as a company to keep the workforce legal. E-verify statistics show that 98.6% of submissions are employment authorized.
  2. Ensuring that the I-9 and E-Verify process is conducted only by individuals who have received appropriate training and include a secondary review as part of each employee’s verification. With fines being applied for clerical errors, the secondary review of the Form I-9 is a critical step as it is extremely valuable in correcting a human error.
  3. Avoiding improper storage of documents to make sure they are easily accessible in case of ICE audits. Though there is no legal requirement that Forms I-9 need to be stored separately from the employment file, employers have only 3 business days after receipt of a Notice of Inspection from the ICE to gather necessary documentation.
  4. Performing regular self-audits and correcting any problems before the government gets involved. While performing a Form I-9 self-audit may seem tedious and time-consuming, it can help companies avoid possible penalties. Plus, this is a good step in creating policy within the HR department to achieve and maintain I-9 compliance.
  5. Using electronic I-9 verification software for creating, managing, and storing Form I-9 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 verification solution, fully integrated with E-Verify, that completes an electronic Form I-9, and simultaneously begins the E-Verify process. Furthermore, such solutions ensure electronic I-9 verification that meets the necessary guidelines, followed by the management, preparation, document storage, and auditing of the Form I-9.
Use this step-by-step guide to ensure a thorough I-9 self-audit and leave no space for omissions, non-compliance, and fines.

11. Anti-Discriminatory Provisions

The Immigration Reform and Control Act which introduced the requirement leading to the promulgation of the Form I-9 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 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 I-9 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.

Types of Discrimination

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.

CITIZENSHIP OR IMMIGRATION STATUS DISCRIMINATION

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 the law, regulation, executive order, or government contract is permissible by law.

NATIONAL ORIGIN DISCRIMINATION

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.

UNFAIR DOCUMENTARY PRACTICES

Relating to verifying the employment eligibility of employees, employers may not request more or different documents than are required for I-9 verification, reject reasonably genuine-looking documents, or specify certain documents over others with the purpose or intent of discriminating based on citizenship status or national origin. U.S. citizens and all work-authorized individuals are protected from document abuse.

RETALIATION

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.

Use this updated, detailed checklist to prepare for I-9 audits, identify and prevent mistakes, and maintain I-9 compliance with current I-9 regulations.

12. Background of the Form I-9

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 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.

Form I-9 Updates

While some federal documents remain unchanged for years, Form I-9 updates are more common. In recent years, enforcement efforts have increased, making it more important now than ever for employers to keep Form I-9s updated to avoid civil fines and criminal penalties.

USCIS released a new version of Form I-9 on January 31, 2020, but employers were allowed to use the prior version until April 30, 2020. The new version of the I-9 is very similar to the previous version of the form with some minor changes.

The new Form I-9 includes the revised “Country of Issuance” field in Section 1 and the revised “Issuing Authority” field in Section 2 to include Eswatini and North Macedonia.

Changes to Form I-9 instructions include:

  • Clarification of who can act as an employer’s authorized representative,
  • Updated USCIS web addresses,
  • Clarification on acceptable documents,
  • Updated process for requesting paper Forms I-9,
  • Updated DHS Privacy Notice.

Although changes in the new Form I-9 appear minor, they present a good opportunity for reviewing hiring policies and ensure employers are properly completing and retaining the form. It is a must for everyone involved in I-9 verification to use the most updated version to ensure I-9 compliance and avoid form violations and fines.

With the I-9 verification 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 processes.

13. Avoid Costly Mistakes with Successful I-9 Verification

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 verification 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 E-Verify and I-9 compliance and to prevent potential fines, one of the best practices for employers is to rely on an electronic I-9 verification software as an invaluable tool for tracking and storing documentation. Automated I-9 verification software helps minimize risk with its built-in quality control mechanisms, easy access to stored I-9s, immediate notification of employment authorization expiration dates, integration with E-Verify, and data security measures. Therefore, the I-9 verification process, which is usually perceived as complex and daunting, becomes simple, secure, and efficient.

Electronic I-9 Verification Solution
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