Form I-9 Requirements: Essential Documentation for U.S. Employers

Employers in the United States are required to verify the identity and employment eligibility of their employees through Form I-9.

Purpose of Form I-9

The primary purpose of Form I-9 is to document that each new employee, whether a citizen or noncitizen, is authorized to work in the United States. The form serves as evidence to the government that due diligence was performed in confirming an employee’s eligibility for employment in compliance with the Immigration Reform and Control Act (IRCA) of 1986.

Legal Basis for Employment Eligibility Verification

Form I-9 compliance is founded on the Immigration Reform and Control Act (IRCA), which prohibits employers from hiring individuals for employment in the United States without verifying their identity and employment authorization. The legal requirement applies to all employers, regardless of size, and mandates the completion of Form I-9 for each individual hired.

Form I-9 is mandatory for employers in the United States and must be completed for every person they hire. It serves to verify the employment eligibility and identity of new employees.

Section 1: Employee Information and Attestation

Employees are required to fill out and sign Section 1 of Form I-9 by their first day of employment. This part of the form collects personal information such as their name, address, Social Security number, and immigration status. The employee must also attest to their authorization to work in the United States.

Section 2: Employer or Authorized Representative Review and Verification

It is the employer’s responsibility to complete Section 2 within three business days of the employee’s first day of work. In this section, the employer must examine documents presented by the employee that show their identity and employment authorization. The employer must determine if the documents reasonably appear to be genuine and relate to the employee presenting them.

Section 3: Reverification and Rehires

If an employee’s employment authorization or documentation of employment authorization has expired, the employer is responsible for completing Section 3. Reverification must be done no later than the date that the employee’s employment authorization expires. This section is also used when rehiring an employee within three years of the date that Form I-9 was originally completed.

The Form I-9 verification process demands specific documents from employees to establish their identity and authorization to work in the United States.

List A Documents

List A documents confirm both the employee’s identity and their work authorization. Employees must present one of the following unexpired List A documents:

• U.S. Passport or U.S. Passport Card
• Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
• Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa

List B Documents

List B documents solely verify the employee’s identity. If an employee chooses to present a List B document, they must also provide a document from List C to establish work authorization. Common List B documents include:

• Driver’s license issued by a U.S. state or territory
• ID card issued by federal, state or local government agencies
• School ID card with a photograph
• Voter’s registration card

List C Documents

List C documents confirm an employee’s legal authorization to work in the United States. These documents do not verify identity. Examples of List C documents are:

• U.S. Social Security card issued by the Social Security Administration (other than a card stating it is not valid for employment)
• Certification of Birth Abroad issued by the Department of State (Form FS-545)
• Original or certified copy of a birth certificate issued by a state, county, municipal authority, or territory of the United States bearing an official seal
• Native American tribal document

Retention and storage of Form I-9 are critical for compliance with U.S. immigration and employment regulations.

Record Keeping Requirements

Employers are mandated to maintain a completed Form I-9 for every employee required to fill it out. The retention period extends either three years after the date of hire or one year after the termination date, whichever is later. Compliance with these timelines ensures that employers can provide proof of their employees’ eligibility to work in the United States upon request.

Storage Solutions and Security

For the forms, both physical and electronic storage options are acceptable. If employers opt for electronic storage, they must ensure that the system adheres to the Department of Homeland Security’s guidelines, including retrievability, documentation, security, and electronic signatures. Employers bear the responsibility for safeguarding these documents against damage, loss, and unauthorized access.

Employers must navigate Form I-9 procedures carefully to avoid penalties and ensure they are not discriminating against employees during the verification process.

Avoiding Discrimination

Employers are required to treat all workers equally when completing Form I-9, irrespective of their national origin or citizenship status. They must not request more or different documents than are legally required by the Form I-9 to verify employment eligibility, nor can they refuse to accept documents that appear to be valid and relate to the person presenting them.

Civil and Criminal Penalties

Employers who fail to comply with Form I-9 requirements could face civil fines for violations, including but not limited to:

• Hiring unauthorized workers: If an employer knowingly hires or continues to employ unauthorized workers, they can incur fines.
• Form I-9 errors: Inaccurate or incomplete forms can attract penalties.

In certain cases, repeated offenses or egregious violations can lead to criminal charges. Factors affecting the penalty amount include:

• Business size
• Good faith effort to comply
• Seriousness of violation

The Department of Homeland Security reviews each case individually to determine the appropriate penalty.

Employers may create their own electronic Form I-9 systems, provided these meet certain requirements regarding functionality, integrity, and compliance with federal regulations.

E-Verify Integration

An electronic I-9 system can integrate with E-Verify, a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. Integration with E-Verify is essential for employers who are required or opt to use this system, ensuring that the Form I-9 process aligns with federal verification procedures. E-Verify participants are permitted to accept any document or a combination of documents from the Lists of Acceptable Documents on Form I-9, with the stipulation that any List B document (proving identity) must include a photograph if a List C (employment authorization) document is also presented.

Electronic Signatures and Storage

An electronic Form I-9 system must support:

• Electronic Signatures: They must be attached to the form and must be compliant with regulations requiring the signature to be tied to the electronically completed form in a manner that allows for the verification of the signature’s validity.
• Storage: Forms and any copies of documents must be stored in a format that is tamper-proof and retrievable for inspection purposes. Employers must establish appropriate systems for the creation, modification, retention, and inspection of Form I-9s that are compliant with regulatory requirements to ensure the integrity, accuracy, and reliability of the electronic storage system.

It’s imperative for employers to stay current with Form I-9 requirements to ensure compliance with employment eligibility verification laws and to implement best practices within their organizations.

Staying Informed on Legal Changes

Legal updates to Form I-9 are a frequent occurrence, with the most recent version mandated for use by employers as of August 1, 2023. Employers must regularly check the USCIS website or subscribe to updates to be notified of such changes. Beginning November 1, 2023, usage of the updated Form I-9 is compulsory for all employers. Staying informed is crucial for compliance and avoiding potential penalties.

Internal Audits and Training

Employers are advised to conduct internal audits on a regular basis to ensure that all I-9 forms are completed accurately and retained correctly. These audits should be conducted by staff who are trained and well-versed in the I-9 process.

Training is equally important to foster a culture of compliance. Following the updates, it’s essential that employers:

• Provide updated training for staff involved in the I-9 and E-Verify processes.
• Emphasize fraud awareness and anti-discrimination practices in training programs.

By doing so, employers demonstrate a good faith effort in verifying that their employees are authorized to work in the United States.