Employment Eligibility Verification for Nonimmigrant Workers
Form I-9 is used to verify the identity and work eligibility of individuals hired to work in the US. It is a mandatory USCIS requirement that must be completed for every new employee working in the United States, applicable to both US and non-US citizens.
The importance of providing full and accurate information with form I-9 cannot be emphasised enough, to avoid federal penalties against employers in respect of immigration non-compliance or even claims for racial discrimination.
Employers should pay particular attention where workers fall under certain ‘special categories’, which include temporary nonimmigrant workers with permission to work temporarily in the US.
Who has responsibility for completing Form I-9?
Both the employer and employee are required to provide information, within different sections of the form.
Ultimately, however, the employer is responsible for ensuring all parts of Form I-9 are properly completed and kept up to date.
Non-compliance can result in penalties against the employer under federal law.
Under the Immigration Reform and Control Act of 1986 (IRCA), employees must complete and sign Section 1 after they have accepted the job offer, and by no later than the first day of employment.
Employees are required to provide to their new employer their identity and work authorization supporting documentation within 3 business days of starting work for pay.
The exception is where you are employed for fewer than 3 days, in which case you must provide the documentation by the first day of paid employment.
Note that employers are not permitted to specify which documents employees should submit to verify their identity. Employees are directed to the prescribed List of Acceptable Documents at the end of Form I-9. Employees must present one selection from List A or a combination of one selection from List B and one selection from List C.
The employer will then review the employee’s supporting documentation, in the presence of the employee. Where the employer accepts the document(s) as genuine, they may make a copy for their records. The originals should always be returned to the employee. They then complete section 2 within three business days of the start of employment.
Where there are concerns about the validity or genuineness of supporting documentation, the employer can request that the employee present alternative documentation per the List of Acceptable Documentation.
There are many additional considerations when completing Form I-9, such as where an employee has used a translator. Seek advice should you have any queries.
Ongoing employer duties
The form I-9 requirements on employers go beyond the onboarding process.
Depending upon the immigration status of the worker, the employer may be required periodically to re-verify that individual’s authorization to work (see below regarding H-1B extensions).
In addition, employers are also subject to record-keeping duties.
The completed form I-9 is not filed with USCIS or any other government agency. Instead, employers are required to retain the completed form and make it available for inspection on request by USCIS or other relevant government officials.
The original and completed form, along with copies of the employee-supplied supporting documentation, must be kept by the employer for whichever is the later of:
- three years from the date the employee is hired, or
- one year from the date the employment ends.
Importantly for employers, any HR policies designed to meet record-keeping duties in respect of Form I-9 should be applied consistently across all employees, irrespective of nationality, immigration status etc, to avoid potential discrimination claims under the Immigration and Nationality Act (INA).
Form I-9 and H-1B workers
Form I-9 must be completed by all new employees – including non-immigrant workers with H-1B status.
There are specific administrative and record-keeping requirements on employers in these instances. You are advised to seek advice to ensure you meet those. By way of summary:
H-1B portability
Nonimmigrant H-1B visa holders already working for an approved H-1B employer are permitted to ‘port’ and start employment with a new H-1B employer as soon as an I-129 Change of Employer (COE) Petition is filed with USCIS.
The American Competitiveness Act in the Twenty-First Century (AC-21) affords H-1B employees the benefit of being able to begin working for the new H-1B employer once their COE petition has been confirmed as being filed. They do not have to wait for the petition to be approved.
To qualify for the AC-21 benefits, the COE petition must be filed before the end of the employee’s period of authorized stay.
The employer is to write “AC21” and “240-Day Ext.” and enter the date the form I-129 was submitted to USCIS in the “additional information” field on form I-9.
H-1B extensions
The employer is required to update form I-9 in respect of any H-1B worker’s change in immigration status. For example, where the employee has petitioned to extend their H-1B visa, they are generally allowed to continue their employment. The employer must record this on the employee’s form I-9 by logging the date the employee filed the I-129 petition with USCIS.
Should the petition be approved, the employer is then required to follow the verification process again to confirm the employee’s newly-authorized employment status.
If the investor seeks a loan through a third party, we suggest that at least 75% of the investment should include the investor’s personal assets. This means that there is some direct risk to the investor, rather than relying heavily on unsecured credit guarantees, loans or mortgages. If the investor is taking funding in exchange for shares to the outside investor, then the analysis would change entirely depending upon the nationality of the outside investor and that party’s involvement in the business. That particular discussion is outside the scope of this piece.
As a mandatory requirement, US employers may well be familiar with form I-9. But complications can arise in relation to nonimmigrant worker status, such as H-1B portability and extensions, and ensuring ongoing compliance in respect of record-keeping and re-verifying work authorization, and with severe penalties for non-compliance, it is critical employers take the time to get it right.
Form I-9 is available on the USCIS website.
NNU Immigration are specialists in US immigration. This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
