FORM I-9 EMPLOYEE VERIFICATION

In a Nutshell: What is Form I-9?

Form I-9, entitled Employment Eligibility Verification, is a form that is used to verify the identities of individuals in order to authorize them for employment in the United States. The form was introduced through the Immigration Reform and Control Act of 1986 (IRCA) and required that every employee hired by a U.S. business after November 9, 1986 complete the form before starting work. The form was created by the United States Citizenship and Immigration Services (USCIS), which is a sector of the Department of Homeland Security (DHS).

*An updated Form I-9 was published by USCIS on November 14, 2016. Click here to access the new form. All new hires starting January 23, 2017 need to fill out this form. The previous version that was published in 2013 will only be acceptable until January 22, 2017.*

Why does Form I-9 exist?

The purpose of Form I-9 is to make sure that employers have made sure that any person that they are hiring is:

1. who he/she says he/she is
2. legally eligible to work in the United States

The following is a list of persons that are eligible to work in the United States:

• U.S. Citizen
• Non-U.S. Citizen National
  ∙ ex: an individual born in American Samoa
• Lawful Permanent Resident
  ∙ ex: a person who has a green card
• An alien who has been authorized to work
  ∙ ex: a refugee, a person who has an employment (work) visa

Form I-9 was created as a means of furthering legal immigration and decreasing illegal immigration since one of the main reasons for immigration, both legal and illegal, is employment opportunity. By putting the responsibility of making sure that employees are eligible for employment in the United States into the hands of employers, the theory is that illegal immigration will be curbed.

E-VERIFY IS NOT RELIABLE
E-Verify Approves More Than Half of Un-Authorized Workers

E-Verify has been publicized as the best and most secure method available for employers to verify whether or not their employees meet federal employment eligibilty requirements. However, a report in 2010 by research firm Westat found that about 54% of unauthorized workers' identity documents were 'verified' by E-Verify. This is due to the fact that well-made counterfeit identity documents that contain a real person's identity data on it will be able to pass the E-Verify system.

The fact that millions of identities that were compromised in the past several years due to data hacks, coupled with the fact that counterfeit identity documents, particularly driver's licenses, are easier and cheaper to make and obtain than ever thanks to advances in technology, means that the power of E-Verify is only going to get weaker and weaker.

The Details: Form I-9 Requirements & Compliance

*Prior to October 2004, Form I-9 had to be filled out by hand. Since then, employers have been given the option of filling out Form I-9 by hand or electronically via a fillable PDF. The fillable PDF can be found by clicking here. Note: In order to use the fillable PDF, you need to have Adobe Reader 8 or higher installed.*

Once you are ready to hire a new employee, you need to be ready to have them fill out Section 1 on Form I-9 by, at the very least, the end of his or her first work day. Every new employee, including temporary and/or part-time employees, need to fill out Form I-9, with certain exceptions.

You are required to provide the instructions that are included with Form I-9 for the employee to read.

However, employers may not ask potential employees to fill out Form I-9 until they have formally accepted a job offer. This is to prevent any sort of discrimination – based on citizenship status, immigration status, and/or national origin – when it comes to employment in the United States. Not only is discrimination of this type expressly prohibited within the legislation that regulates Form I-9, but employment discrimination is prohibited by many other federal and state legislations.

If the employee needs a preparer and/or translator to read and/or complete the form, the person who prepares and/or translates the form for the employee needs to fill out the “Preparer and/or Translator Certification” subsection in Section 1.

It should be noted that although Section 1 asks for the employee’s Social Security Number, divulging that information is voluntary. The only time a Social Security Number is required is if the employer participates in E-Verify¹.

It is the employer’s responsibility to make sure that all of Section 1 is filled out correctly and completely by the employee.

After the employee has filled out Section 1, it is your responsibility to fill out Section 2 within 3 days.²

In order the fill out Section 2, your employee needs to present an unexpired, original (not copied) document or documents that verify not only his identity but his employment eligibility.

There are 3 lists – List A, List B, and List C that are collectively known as the “Lists of Acceptable Documents” - that found within the instructions under the heading “List of that details the types of identity documents are acceptable.

• List A represents all identity documents that provide verification of identity and employment authorization.
• List B represents all documents that provide verification of identity only.
• List C represents documents that provide verification of employment authorization only.

The documents that fall under each of these 3 lists can be found below.

The employee needs to either:

1. Present one document from List A
   ∙ Note: some documents in List A, such as a foreign passport and Form I-94, need to be presented together in order to complete this section correctly
2. Present one document from List B and one document from List C
   ∙ If your business participates in E-Verify, you need to make sure that the document from List B contains a photograph of your employee

You are required to provide your employee with all three lists so that your employee can choose which documents to present.

*This cannot be stressed enough: You cannot ask your employee to present certain documents. The document(s) they choose to present is their choice as long as it follows the instructions above. For example, if an employee presents an authentic document from List B and an authentic document from List C, you cannot ask that employee to present a document from List A.*

It is your responsibility to check the authenticity of the document(s) to the best of your ability and in the physical presence of the employee. If you deem the document(s) to be real, you must accept those documents. If you deem the document(s) to be fake, you may ask that your employee present another acceptable form of identification and/or employment authorization following the instructions above.

If an employee is either unable or unwilling to provide acceptable identity or employment eligibility documents by the third day of employment, you retain the right to fire the employee.

Employers are allowed to make copies of the documents that employees present for their records. However, please note that if you choose to make copies of documents, you must do them for all employees you hire.

There are may be instances in which an employee is in the midst of obtaining the acceptable document(s). In these instances, the employee would instead need to provide to their employer a receipt within 3 days of their start day and present the document(s) once it has been received.

The following is a list of acceptable receipts as well as the deadlines for when the actual document(s) need to be presented:

• For a lost, stolen, or damaged document(s): A receipt that shows that you have applied to replace the document(s)
  ∙ Deadline to present replacement document: within 90 days of the start date
• For a Permanent Resident Card (Form I-551): The arrival portion of Form I-94 (or Form I-94A) with a temporary I-551 stamp and a photograph of the employee is the only acceptable receipt in this situation
  ∙ Deadline to present replacement document: by the expiration date found on the temporary I-551 stamp, or if there is no expiration date, within 1 year of the date that the employee was admitted into the United States
• For an Employment Authorization Document (Form I-766): The departure portion of From I-94 (or Form I-94A) with a refugee admission stamp is the only acceptable receipt in this situation
  ∙ Deadline to present replacement document: within 90 days of the employee’s start date; in this case, one document from List B and an unrestricted Social Security Card are acceptable replacement documents as long as they are presented by the deadline

Form I-9 is not complete unless it has been signed manually (by hand) by the employee, preparer/translator (if either was needed), and by the employer. For the electronic version of Form I-9, electronic signatures are acceptable as long as it is under compliance under 8 CFR 274a.2.

Once Form I-9 has been filled out completely and correctly, you need to retain the form and all supporting documents, such as copies of identity and/or employment eligibility documents, yourself. If you have a Human Resources Department, the form and all supporting documents should be given to them.

* Do not mail/email completed I-9 forms to U.S. Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE). All I-9 forms need to be retained by employers for situations such as an audit.*

Employers need to keep Form I-9 as well as any supporting documents for each employee for as long as the employee is under your employment.

Since Form I-9 and supporting documents have sensitive identity information about employees, it is highly recommended that employers take necessary steps to safeguard this information.

Form I-9 and supporting documents can be stored either on-site or at an off-site storage facility and can be stored in any of the following formats, by itself or in combination, as long as the information found on them is legible:

• On paper
• On microfilm or microfiche
• Electronically

No matter where or in what format the forms and documents are stored, they need to be accessible in such a way that they can be presented to government officials or auditors within 3 business days of their request.

There are civil and/or criminal penalties that can result from disregarding Form I-9 and/or its instructions. These penalties apply to employers, not employees; employees who violate Form I-9 regulations can be subject to criminal penalties.

Employers who have violated the Form I-9 regulations, but have acted in ‘good faith’ – that the employer sincerely tried to follow all Form I-9 regulations and not commit any violations – will not be penalized if the employer can show that he/she genuinely acted in good faith.

The following is a list of actions and inactions that can result in these civil and/or criminal penalties. (Note: each range of civil fines given below pertains to the first instance of each offense; subsequent offenses may result in much higher fines³):

• If you hire, recruit, or refer for a fee a person who is not authorized to work in the United States
  ∙ Civil Fine: $539-$4,313 per unauthorized person
• If you fail to comply with verification requirements
  ∙ Civil Fine: $216-$2,156 for each Form I-9 in noncompliance
• If you commit document fraud (i.e. knowingly present a falsified/forged employment eligibility document(s))
  ∙ Civil Fine: $445-$3,563 for each document
• If you commit document abuse (i.e. asking for specific forms of identification when an employee has already presented an authentic, unexpired identification document(s) that meet the requirements)
  ∙ Civil Fine: $178-$1,782 for each document abuse violation
• If you discriminate against an employee who has met identity and employment eligibility requirements:
  ∙ Civil Fine: $445-$3,563 per discrimination violation
• If you establish a pattern of hiring, recruiting, or referring for a fee persons who are not eligible for employment in the United States:
  ∙ Civil Fine: Up to $3,000 for each person
  ∙ Criminal Penalty: Up to 6 months in prison

How does Form I-9 affect your business?

If you are U.S. employer, all new employees hired need to fill out Section 1 on Form I-9 before the end of the first day of employment.

In addition, you or an employee acting on behalf of your business, such as a hiring manager, need to fill out Section 2 within 3 days of the employee’s start date.

In essence, Form I-9 doesn’t affect your business further than:

1. Filling out the form: Section 1 by the employee, and Section 2 (and Section 3, if needed) by the employer
2. Storing the form: For at least 3 years after the employee’s start date or at least1 year after the employee’s termination, whichever is later

There exists Section 3, which is titled “Reverification and Rehires”. This section does not need to be filled out for each new employee. It is used in the following situations:

• When an employee’s work authorization has expired; for example, for employees with employment visas
  ∙ It is recommended that employers remind their employees about their upcoming work authorization expiration dates at least 90 days before the date of expiration
  ∙ The employee must bring in their new work authorization document before the date that their previous work authorization document expires
  → If an employee is in the middle of renewing their work authorization document, a receipt of the document needs to be presented by the expiration date. The renewed document must be presented within 90 days of the original expiration date.
  ∙ Employers are required to make sure that employees’ re-issued work authorization documents are genuine and record the new expiration date in Section 3
• When an employee is re-hired (see paragraph below for more details)
• When an employee legally changes his/her name

Although Form I-9 is required for all new employees, it does not need to be filled out for the following people and situations:

• When an employee is re-hired (ex: when an employee returns from a leave of absence or from a disciplinary suspension)
  ∙ Instead of filling out a new I-9, simply fill out Section 3 of the original I-9 with the required information
  ∙ A new Form I-9 needs to be filled out if the employment gap exceeds 1 year or if the re-hired occurs 3 years after the original date of hire
  ∙ If re-hiring an employee who had a work authorization with an expiration date that has passed, you need to fill out the Subsection C in Section 3 with the new expiration date. If Subsection C had already been filled previously, you should use a new I-9 form
  ∙ However, if the version of Form I-9 that was used for the re-hired employee is no longer valid – i.e. another Form I-9 version has been released – then a new, current-version I-9 needs to be filled out
• When an independent contractor is hired
• When an employee is hired through a temp agency
  The temp agency is the entity that is required to fill out and store Form I-9
  ∙ If issues arise from the false identification or work status of the employee, the temp agency will be held responsible for the penalties. However, if the employer who hired the employee through the temp agency has reason to suspect that the employee is not who he/she says he/she is and/or is not authorized to work in the United States, the employer can be penalized as well
• Employees who are hired by private citizens for causal domestic work that occurs on a sporadic, irregular, or intermittent basis
  ∙ ex: babysitters or housekeepers
• Employees who do not physically work in the United States
• Persons who provide a service(s) for your business but are neither paid nor provided remuneration, such as meals and lodging
  ∙ ex: interns and volunteers
• People who are self-employed
  ∙ However, owners of either a corporation or partnership still need to fill out Form I-9

As mentioned above, disregarding Form I-9 or its instructions, whether knowingly or unknowingly can result in civil fines, as well as criminal penalties for repeat offenses.

Form I-9 Information Resources

Although most of the details surrounding Form I-9 have been covered above, there are some nuances that have not been covered, such as how to correctly fill out Form I-9 when hiring a minor:

• For a list employees who fall into special categories and require slightly different instructions for filling out From I-9 correctly and completely, please click here (https://www.uscis.gov/i-9-central/complete-correct-form-i-9/who-needs-form-i-9)
• For fully comprehensive instructions, as given by the Department of Homeland Security on Form I-9, on correctly and completely filling out Form I-9, please click here (https://www.uscis.gov/system/files_force/files/form/i-9instr.pdf)
• For a walkthrough on how to complete Form I-9, as given by U.S. Citizenship and Immigration Services, please click here (https://www.uscis.gov/i-9-central/complete-and-correct-form-i-9)
• For a comprehensive list of civil and criminal penalties that can result from disregarding Form I-9 and/or its instructions, whether knowingly or unknowingly, please click here (https://www.uscis.gov/i-9-central/penalties)

Form I-9-related Blog Posts

• Proper I-9 Employment Verification - Beyond “Good Faith”

¹ E-Verify is used to check an employee’s identity information against the databases found within the U.S. Department of Homeland Security, the Social Security Administration, and certain states’ Department of Motor Vehicle (DMV). E-Verify is not equivalent to Form I-9 and cannot be used in place of Form I-9. E-Verify is supplementary to Form I-9 and is most often used to enhance compliance for potential future audits. To be clear, any employer can choose to participate in E-Verify – it’s just not required. However, federal contractors and employers in certain states are required to use E-Verify whenever they hire a new employee.

² If an employee is hired for less than 3 days, Section 2 needs to be filled out not later than the end of the first day of employment.

³ For a full list of civil and criminal penalties, please click here.