FORM I-9 AND YOUR EMPLOYEES
The Immigration Reform and Control Act (IRCA) took effect in 1986 to prevent the employment of illegal aliens in the United States. IRCA requires employers to hire and retain only individuals authorized to work in the United States, and imposes strict penalties on those that knowingly employ illegal aliens. To enforce these guidelines, IRCA requires employers to verify a potential employee’s eligibility to work in the United States by completing the Employment Eligibility Verification Form (Form I-9). By completing Form I-9, the employer is certifying that it has viewed documents proving that the potential employee is authorized to live and work in the United States.
In addition to employment eligibility rules, IRCA also prohibits employers with four or more employees from discriminating against individuals based on national origin or citizenship status during the hiring, termination, recruiting or referral processes. Any refusal to accept legal documents during these processes is considered “document abuse,” and is strictly prohibited. Employers may be subject to penalties for document abuse.
An amendment to IRCA allows employers to complete and store Form I-9 either on paper or electronically, or complete Form I-9 on paper and store it electronically. The Department of Homeland Security offers an Internet-based system called E-Verify that allows participating employers to electronically verify employment eligibility of new hires.
Overview of Form I-9
Beginning May 1, 2020, employers must only use the new Form I-9. U.S. Citizenship and Immigration Services (USCIS), part of the U.S. Department of Homeland Security, recently issued an updated version of Form I-9: Employment Eligibility Verification (Form I-9). Under federal law, every employer that recruits, refers for a fee or hires an individual for employment in the United States must complete a Form I-9.
The updated form replaces a version that was issued in 2017. Employers may continue using the previous form until April 30, 2020. Exclusive use of the updated form is expected by May 1, 2020. The new form expires on Oct 31, 2022.
Form I-9 has three sections—the first is completed by the employee, the second is completed by the employer and the third is completed only when rehire, re-verification or name changes apply.
Section 1
The employee supplies original, unexpired documents authorizing his or her identity and employability from the following lists of documents approved by the U.S. Citizenship and Immigration Services (USCIS). Employers may only accept documents in Lists A, B and C. Penalties may apply for accepting or requesting documents not on these lists.
List A: Documents Establishing Identity and Employment Eligibility
- U.S. Passport
- Permanent Resident Card or Alien Registration Receipt Card, Form I-551
- Temporary I-551 printed notation on a machine-readable immigrant visa
- Unexpired foreign passport with a temporary I-551 stamp
- Unexpired Employment Authorization Document containing a photograph: Form I-766 Employment Authorization Document
- Unexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94, bearing the same name as the passport containing an endorsement of the alien’s non-immigration status (if that status authorizes the alien to work for the employer)
- Passport issued from the Federal State of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) with a valid Form I-94 or I-94A
List B: Documents Establishing Identity Only
- Driver’s license or identification card issued by a state or possession of the United States containing a photograph or information such as name, date of birth, gender, height, eye color and address
- School identification card with photograph
- Voter’s registration card
- U.S. military card, draft record or military dependent’s identification card
- Identification card issued by federal, state or local government agencies or entities containing a photograph and name, date of birth, gender, height, eye color and address
- U.S. Coast Guard Merchant Marine Card
- Native American tribal documents
- Canadian driver’s license
- Those under 18 can present a school record, report card, clinic or doctor record, or a day-care or nursery school record
List C: Documents Establishing Employment Eligibility Only
- U.S. Social Security Number Card issued by the Social Security Administration
- Original or certified copy of a birth certificate issued by the state, county, municipal authority or outlying possession of the United States bearing an official seal
- Certificate of birth abroad issued by the Department of State (Form FS-545 or Form DS-1350)
- Unexpired employment authorization document issued by the Department of Homeland Security
- Form I-197 U.S. Citizen Identification Card
- Native American tribal document
- Form I-179 Identification Card for Use of a Resident Citizen in the United States
Section 2
The employer fills out this section using the information provided in the documents presented by the employee to prove his or her eligibility for employment in the United States.
Section 3
The employer uses Section 3 for rehired employees, if the rehire took place within three years of when Form I-9 was initially completed and the employer still has the previously completed forms.
Completing Form I-9
Employees working less than three business days must complete Sections 1 and 2 of Form I-9 before beginning to work. If the individual is hired for work lasting longer than three days, the form must be filled out before the end of the third day of employment.
Employers can hire an outside business or contractor to verify a potential employee’s eligibility, but the employer is ultimately responsible for the contractor’s actions and the employee’s status.
Maintaining Form I-9
An employer is required to maintain Form I-9 in an accurate, reliable manner, and with integrity, so that no one makes alterations to the form without proper authorization. This applies for both electronic and paper storage.
An employer is allowed, but not required, to photocopy documents used to verify identity and employability. However, should the employer decide to photocopy documents received from one potential employee, it should do so for all potential employees. Before copying documents presented by new hires, employers should consider that storing copies of fraudulent or forged documents can be used as proof that the employer accepted falsified or forged documents. Also, storing a large number of documents takes up space and costs money.
Retaining Form I-9
Once Form I-9 is completed, employers are required to keep the form on file for at least three years from the date of hire for current employees, and at least one year after the individual leaves the company, whichever is later. Hard copies should be stored in alphabetical order in a folder specifically marked for Forms I-9, or in an electronic folder. Should an authorized official of the USCIS, the Department of Labor (DOL) or the Office of Special Counsel for Immigration Related Unfair Labor Practices request copies of the forms for any reason, the employer must have original forms available on location within three days of the request.
Employers should set up a reminder system to ensure that they do not forget to obtain documentation and complete Form I-9 for all new hires. The reminder system should also help employers with re-verification obligations when employee documents certifying work authorization have an expiration date. In these cases, employers must re-verify the employee’s eligibility before the authorization’s expiration date. This requirement does not apply to Permanent Residency Cards (green cards), U.S. citizenship documents or any document from List B.
Employees without Documents
If a new employee is unable to produce the required documents within three business days of hire, he or she must present:
- A receipt for the application for replacement documents within the three business days; and
- The actual required document within 90 days of hire.
Note: This procedure is not applicable to an alien who indicates that he or she does not have work authorization at the time of hiring.
Employer Sanctions
Under IRCA, employers can be fined for not complying with Form I-9 guidelines, accepting fraudulent documents when determining employment eligibility or discriminating against individuals based on their nation of origin or citizenship status. Fines range from $110 to several thousand dollars, depending on the offense and the frequency of offenses.
Recently, U.S. Immigration and Customs Enforcement (ICE) has greatly increased workplace investigations, exposing more employers to penalties for noncompliance and making it more important than ever to take compliance seriously. It is important to conduct internal audits regularly to ensure your business is complying with the law. You may also want to consider consulting an attorney to review your procedures and forms to be as prepared as possible in the event of an audit.
The final revised Form I-9 and additional resources for employers are available at www.uscis.gov.
