Form I-9 Employment Eligibility Verification

When recruiting new staff as a US-based employer, Form I-9 plays an important part in the onboarding process, ensuring that all new recruits are legally entitled to undertake gainful employment.

The following guide for US employers looks at the process of verifying employment eligibility using Form I-9, from what this is to the common errors to avoid.

 

What is Form I-9?

When starting employment in the United States, each new employee will be required to complete Form I-9, Employment Eligibility Verification, in conjunction with either their employer or an authorized representative who is acting on behalf of the employer.

The latest version of Form I-9, together with the special instructions on how to use and download this version, can be found on the website for US Citizenship and Immigration Services (USCIS). USCIS is the federal agency that forms part of the US Department of Homeland Security (DHS) and is responsible for administering Form I-9.

The latest edition of Form I-9 is dated 08/01/23 (mm/dd/yyyy), where the new form changes the order of sections to make the process of completing the form much simpler.

 

What is Form I-9 for?

Form I-9 is the paperwork that must be completed to enable US employers to verify the identity and the employment authorization of anyone recruited, and to meet the mandatory legal requirements to verify a person’s right to work prior to hiring them.

As an employer, you may be subject to significant civil money penalties under federal law for failing to comply with the strict requirements for completing Form I-9. You will also be liable for financial penalties for any violations in connection with the form or verification process that may be committed by any authorized representative acting on your behalf.

Employment is often the magnet that attracts migrants to live in the US unlawfully, where the requirement on employers to recruit only individuals who may legally undertake work, plus the sanctions imposed for any violation of this, are designed to remove this magnet.

 

When is Form I-9 used?

All US employers must ensure that a Form I-9 is completed for each and every individual they hire for gainful employment in the United States, regardless of their nationality or immigration status. This includes both citizens and noncitizens. You must therefore complete Form I-9 each time you hire someone to perform labor or services in the US in return for wages or other remuneration, including food and lodging.

As part of the Form I-9 process, all employees must complete, sign and date Section 1 of the form no later than the first day of paid employment, but not before acceptance of an offer of employment. Employers or any authorized representative must complete, sign and date Section 2 of Form I-9 within 3 business days after the employee’s first day of work.

 

How is Form I-9 used?

Once Form I-9 has been completed and signed by both the employer and employee, this does not need to be filed with USCIS. Instead, employers must retain Form I-9 for a designated period and make this readily available for inspection by authorized government officials, where requested in the context of a Form I-9 audit or otherwise.

To comply with the filing requirements for Form I-9, employers must ensure that:

• they have a completed Form I-9 on file for each individual who is currently on their payroll who is required to complete the form
• they retain and store each Form I-9 for 3 years after the date that the employee was hired or, alternatively, for one year after employment is terminated, whichever is later
• they make their forms available for inspection if requested by any authorized US government officers from either the DHS, Department of Labor or Department of Justice.

 

How is Form I-9 completed?

Form I-9 is completed in two stages: first by the employee and followed by the employer.

On Form I-9, an employee must provide their personal information and attest to their employment authorization. They must also present their employer with acceptable documentation as evidence of their identity and legal entitlement to work in the US.

The employer must carefully examine the employee’s documentation to determine whether it relates to the employee in question and reasonably appears to be genuine, and then record the document information on the employee’s Form I-9.

 

How is Section 1 of Form I-9 completed?

Section 1 of Form I-9 makes provision for the necessary employee information and attestation. Under this section, the employee will be required to provide their full name, residential address, date of birth, email address and telephone number. They should also provide their US social security number, where available.

Having provided this information, the employee must check the applicable tick box to attest to their citizenship or immigration status, before signing a declaration that the information is true and correct. If a preparer and/or translator assists the employee in completing Section 1, that person must complete the appropriate certification on page 3 of Form I-9.

 

How is Section 2 of Form I-9 completed?

Once “Section 1. Employee Information and Attestation” of Form I-9 has been completed by the employee, and having reviewed Section 1 to ensure that the employee has completed this properly, the employer must complete “Section 2. Employer Review and Verification”.

To complete Section 2, you or your authorized representative will first need to examine original, acceptable and unexpired documentation, or an acceptable receipt, to determine if this reasonably appears to be genuine and relates to the employee presenting it. In general, the employee’s documentation must be reviewed in their physical presence. However, if you participate in the E-Verify confirmation system, you may be eligible to remotely examine employee documentation under the alternative procedure authorized by the DHS.

Having examined the relevant documentation, either physically or remotely, you will then need to record key details relating to the document(s) examined, including:

• the document title
• the issuing authority
• the document number (if any)
• the document expiration date (if any).

The employer or authorized representative must provide their name and title, the employer’s business or organization name, together with the business/organization address in the relevant boxes of Section 2. The employer must also sign a declaration stating that they attest that they have examined the documentation presented by the employee, that the documentation appears to be genuine and to relate to the employee named and, to the best of their knowledge, the employee is authorized to work in the United States.

 

What are acceptable documents for Form I-9 purposes?

The list of acceptable documents for Form I-9 purposes can be found on page 2 of the form, where an employee may present one selection from List A or, alternatively, a combination of one selection from List B and and List C respectively. Documents from List A will establish both identity and employment authorization for the employee. In contrast, documents from List B establish only identity, while documents from List C establish only employment authorization. All documents containing an expiration date must be unexpired, although documents automatically extended by the issuing authority should be treated as such.

Documents from List A can include, for example, a US passport, a Permanent Resident Card (or Green Card), a foreign passport that contains a temporary I-551 stamp, or an Employment Authorization Document (EAD) on Form I-766 containing a photo. However, even though an employee will only usually be required to produce one document selected from List A, some documentation must be presented together to be considered acceptable List A documentation for Form I-9 purposes. For example, for an individual temporarily authorized to work for a specific employer by reason of their status, they must present a foreign passport and Form I-94 (Arrival/Departure Record) endorsed with their status.

Documents from List B can include a driver’s license or ID card issued by either a federal, state or local government agency or entity, provided this contains a photo or information, such as the employee’s name, address, date of birth, gender, height and eye color.

Documents from List C can include a social security account number card, provided the card does not include any work restrictions, such as “not valid for employment”. List C documents could also include an original birth certificate, or a certified copy, issued by either a US state, county, municipal authority or territory and bearing an official seal.

This list is not exhaustive. Additionally, in lieu of any document listed above, an employee may present an acceptable receipt for a temporary period. This could include, for example, a receipt for a replacement of lost, stolen or damaged List A, B or C documents.

 

Can the employer specify Form I-9 documentation?

You must allow an employee to select which documentation that they will present from the list of acceptable documents for Form I-9 purposes, and you must accept documentation that reasonably appears to be both genuine and relating to the individual presenting it.

Form I-9 contains a very clear anti-discrimination notice which states that employers cannot specify which documentation employees must present for Section 2 so as to verify employment eligibility. Equally, you cannot ask employees for documentation to verify the information pertaining to the identity of the employee in Section 1 of the form.

By law, employers are not allowed to request either more or different documents than are required to establish identity and verify employment eligibility because of their citizenship status or national origin. They are also not allowed to reject reasonably genuine-looking documents, or to specify certain documents over others. By treating your employees differently based on their citizenship, immigration status or national origin, you will be acting illegally, putting you at risk of a civil penalty for unfair documentary practices.

 

Can Form I-9 documentation be checked remotely?

If you participate in E-Verify, you may be eligible to remotely examine an employee’s documents under the DHS-authorized alternative procedure. E-Verify is an electronic employment eligibility confirmation system. This allows an employer to confirm the eligibility of new starters to work in the US by electronically matching their Form I-9 information against records available to the DHS and Social Security Administration.

If you choose to offer the alternative remote procedure to physical document examination, you must do so consistently for all employees. The only exception to this is if you adopt the alternative procedure for remote hires only, while continuing to apply physical examination processes to all employees who work onsite or in a hybrid capacity.

To examine your employee’s documentation remotely, you must be enrolled in good standing in E-Verify, and complete the following steps:

• examine copies (front and back, if applicable) of Form I-9 documents, or an acceptable receipt, to ensure that the documentation presented reasonably appears to be genuine
• conduct a live video interaction with the employee presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to that individual (where the employee must first transmit a copy of the document(s) and then present the same documentation during the live video interaction)
• indicate on Form I-9, by completing the corresponding box, that you have chosen remote rather than physical examination of an employee’s documents to complete Section 2
• retain a clear copy of the documentation for your records where, in the event of a Form I-9 audit by federal government officials, you must make available both Form I-9 and your copy of the identity and employment authorization documentation presented by the employee for document examination in the verification process.

If you are enrolled in E-Verify, you may accept any Form I-9 document or combination of documentation from the list of acceptable documents, but if the employee presents you with a List B and C combination, the List B (identity only) document must have a photo. The employee must also provide their Social Security number in Section 1 of the Form I-9.

 

Common errors to avoid when completing Form I-9

There are a number of common errors to avoid when completing Form I-9, from accepting unacceptable documentation to inadvertently discriminating against new-starters by reason of their citizenship, immigration status or national origin. The best way to avoid any violations when completing Form I-9 is, on each occasion, to refer to the handbook for employers (M-274) on the USCIS website. However, seeking expert advice from an immigration specialist can help you to put in place compliant procedures from the outset, saving you time and money in the long-run, including the cost of any financial penalties.

 

Form I-9 FAQs

Can you complete I 9 before start date?

Employees must complete Section 1 of Form I-9 no later than the first day of work, but not before accepting their job offer, while employers must complete Section 2 within three business days after the employee’s first day of work.

 

Who completes I-9?

Form I-9, Employment Eligibility Verification, must be completed by the employer or any authorized representative of the employer, in conjunction with the employee. It must also be signed and dated by both parties to be classed as correctly completed.

 

Can you correct a mistake on form I-9?

Employees should be asked to correct any mistakes in Section 1 of Form I-9. For mistakes in Section 2, the employer should draw a line through the incorrect information and enter the correct information, before initializing and dating the correction.

This article does not constitute direct legal advice and is for informational purposes only.