Remote and agricultural employees

• Remote employees may be designated an in-person representative who can help complete the Form I-9 and who can deliver the form to the employer within three days.
• Agricultural employers must comply with the employment eligibility verification requirements determined by the INA.
• Forms must be retained for three years by either the employer or the recruiter/referrer.

Remote employees

As with all employees, remote employees must complete Section 1 of the Form I-9. When reviewing the identity and employment authorization documents for Section 2, employers with remote employees have a few options. They may:

1. Designate a representative of the employer who can complete the I-9 process in person with the employee
2. Require the employee to visit a company location to have the documents examined in-person
3. Use the remote verification process, if the employer participates in E-Verify

Option 1: Employer representative. The employer’s representative must make sure Section 1 is completed in full by the employee. The representative will also examine the employee’s documentation and complete Section 2 of the Form I-9.

This individual does not need to be an employee of the company, but it may be anyone who the employer trusts to carry out I-9 responsibilities on the company’s behalf. This could be a lawyer, a public official, or a notary public. A relative or friend of the employee could also examine the documents, but employers are responsible for any mistakes that are made.

Since the employer is ultimately responsible for any errors or omissions made by its representatives, the employer it is a best practice to ensure that individual authorized to carry out I-9 responsibilities is properly trained.

Once completed, the original Form I-9 should be delivered to the employer, who should keep the form secure. Employers must be able to produce all employees’ forms within three days in case of a government audit.

Option 2:In-person review of documents. An employer could have the employee report to a company location within three days of hire to have identity and employment eligibility documents verified in person. If the employee is traveling to company headquarters for training, this may be viable. Otherwise, it may not be a convenient or cost-effective option due to the time and expense associated with travel.

Option 3: Remote review. An employer participating in E-Verify can remotely review an employee’s identity and eligibility documents. To take advantage of this alternative procedure, an employer must:

• Be enrolled in E-Verify,
• Examine and retain copies of all documents,
• Conduct a live video interaction with the employee, and
• Create an E-Verify case if the employee is a new hire.

When remote review is used for viewing the employee’s eligibility and identity, employers must check a box on the employee’s Form I-9 indicating that the documentation was examined under an alternative procedure rather than via physical examination.

Document examination using remote review

When documents are reviewed remotely, employees must first transmit a copy of the documents to the employer. The same documents are presented during the live video interaction. The employer examines the copies of the documents or an acceptable receipt to make sure the documentation reasonably appears to be genuine.

Both the front and back of the document are examined if the document is two-sided.

Remote review responsibilities

Only E-Verify employers in good standing can use the remote review procedure. If an employer offers the remote review procedure at a hiring site, the employer must offer it consistently to all employees at that site. An employer may choose to offer the alternative procedure for remote hires only as long as this is not done for a discriminatory purpose.

An employer using an alternative procedure must retain a clear and legible copy of all documents presented by the new hire.

Reverification for remote employees

Supplement B is completed when an employment authorization needs to be reverified. When a remote employee’s documentation needs reverification, the employer may again use a representative who can examine the employee’s documentation in person, although it does not need to be the same representative who helped the employee the first time.

An employer participating in E-Verify may use an alternative procedure authorized by the Department of Homeland Security (DHS) to examine the documents.

Agricultural employees

Under the Immigration and Nationality Act (INA), it is unlawful for an agricultural association, agricultural employer, or farm labor contractor to refer for a fee, hire, or recruit an individual for employment in the United States without complying with employment eligibility verification requirements. These employers must follow the eligibility and verification requirements mandated. This provision applies to those agricultural associations, agricultural employers, and farm labor contractors who recruit people for a fee, and to those who refer people or provide documents/ information about people to employers in return for a fee.

This limited class of recruiters and referrers for a fee must complete Form I-9 when a person they refer is hired. Form I-9 must be fully completed within three business days of the date employment begins or, in the case of an individual hired for fewer than three business days, at the time employment begins.

Recruiters and referrers for a fee may designate agents, such as national associations or employers, to complete the verification procedures on their behalf. If the employer is designated as the agent, the employer should provide the recruiter or referrer with a photocopy of Form I-9. However, recruiters and referrers for a fee are still responsible for compliance with the law and may be found liable for violations.

Recruiters and referrers for a fee must retain Form I-9 for three years after the date the referred individual was hired by the employer. They must also make Forms I-9 available for inspection by an officer from the Department of Homeland Security (DHS), the Department of Labor (DOL), or the Immigrant and Employee Rights Section (IER).

When is a Form I-9 not needed?

• A Form I-9 is not needed for individuals employed for casual work in a private home, employees outside of the U.S., independent contractors, unpaid workers, or the self-employed.
• Employers who obtain workers through a temporary agency should verify that the agency has already completed Forms I-9 for those workers.
• Employees hired before November 6, 1986, do not need a Form I-9.

Forms I-9 are not required for individuals who are employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis. In addition, only employees who were hired after November 6, 1986, need to have completed an I-9.

Other workers who do not need a Form I-9 include:

Employees outside of the U.S.: Employees who are not working on U.S. soil are not required to complete a Form I-9, even if they are employed by a U.S. employer.

Independent contractors: Independent contractors are not employees, so the company enlisting the contractor’s services need not complete an I-9 for that individual.

Unpaid workers: Volunteers and unpaid interns are not employees, so employers will not be required to complete I-9s for these individuals.

Employees of a temporary agency: Individuals who work for a company through a temporary agency are typically employees of the agency. Where this is the case, the temporary agency is responsible for ensuring their employees are authorized to work in the United States via the Form I-9 process. However, an employer can still be held responsible if it knew (or should have known) that the workers obtained from the temporary agency were not authorized to work. Employers who use the services of temporary agencies may want to ask for confirmation that the agency completes the Form I-9 process for all of their employees. Due to privacy concerns, temporary agencies may prefer not to share the actual I-9 forms.

The self-employed: Self-employed individuals do not need to complete a Form I-9 on their own behalf unless employed by a separate business entity, such as a corporation or partnership. If the person is an employee of a separate business entity, then the Form I-9 will need to be completed.

How to complete Section 1: Identifying information

• Employees enter their name, address, date of birth, and Social Security number.
• A Social Security number is optional if the employer does not participate in E-Verify.
• A copy of the Social Security card is not needed for Section 1 of Form I-9.
  

Name: In these fields, employees must enter their full legal name.

• If the employee has two last names (family names), both should be included here. If the employee’s last name is hyphenated in any way, that should also be entered in this field.
• An employee who has two first names (given names) should include both. If the employee’s first name is hyphenated in any way, that should also be entered in this field.
• Employees with only one name should enter it in the “Last Name (Family Name)” field and should then enter “Unknown” in the “First Name (Given Name)” field.
• The employee should include a middle initial, if applicable.

Address: The employee’s current address should be written in this field.

Date of birth: The employee’s date of birth should be entered in this field, in the format indicated.

Social Security number: Though not indicated directly on the form, this field is optional for employees of employers that do not participate in E-Verify. Where the employee does provide a Social Security number in Section 1 (whether voluntarily or because the employer participates in E-Verify), the employee only needs to enter the number in the field. The employer may not ask to see the employee’s Social Security card for the purposes of Section 1. If the employee chooses to present a Social Security card for Section 2 of the Form I-9, however, the employer is then required to examine the document.

Some employers have expressed concern about the speed with which this information may become outdated. However, there is currently no requirement to update an employee’s information in Section 1 when it becomes out of date.

How to complete Section 1: Attestation of eligibility and signature

• In Section 1, employees attest to their eligibility to work
• Employees enter whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
• Employees must sign the form.

Attestation: In Section 1, the employee attests to being eligible to work in the United States. The employee indicates which of the following applies:

• Citizen of the United States
• Noncitizen national
• Lawful permanent resident
• Noncitizen authorized to work

The language for these choices was updated in the August 1, 2023, version of the form. The term “alien authorized to work” was replaced with “noncitizen authorized to work.”

Signature of Employee: The signature is the attestation that the information entered in Section 1 is correct to the best of the employee’s knowledge. Individuals who cannot sign their names may place a mark in this field to indicate their signatures. This is required even for individuals who use a preparer/translator to complete Section 1.

How to complete Supplement A: Preparers and Translators

• Supplement A is completed when employees have assistance completing the form.
• Supplement A is also used when translators assist with the completion of the Form I-9.
• The preparer/translator section used to be on the Form I-9, but was moved to a separate supplement in the August 1, 2023, version of the form.

Preparer and/or Translator Certification: If the employee cannot complete Section 1 without assistance or if the Form I-9 needs to be translated, someone qualified may assist.

The employee still must sign (or mark) the form in the “Signature of Employee” field and the employee is still responsible for the accuracy of the information provided in Section 1. The preparer or translator must certify that the employee was assisted by completing Supplement A, for preparers and/or translators.

This standalone supplement was introduced in when the form was updated in August 2023. Before this, the Preparer and/or translator Certification area was part of Section 1 of the Form I-9.

In the case that an employee requires multiple preparers and/or translators, each subsequent preparers/translators must complete a separate supplement. Employers may attach additional supplement sheets to the Form I-9 when necessary.

Lists of Acceptable Documents

• The employee can choose between presenting one document from List A (one document total) OR one document from each of Lists B and C (two documents total).
• All documents must be original documents, except in the case of a birth certificate which may be presented as a certified copy.

The employee must be allowed to choose which document or combination of documents to present from the Lists of Acceptable Documents, as long as they are on the list and meet the requirements. The Lists of Acceptable Documents should be made available to the employee along with the Form I-9 and its instructions.

Employees must be allowed to choose which documents to present. They may present one document from List A or any combination of documents from Lists B and C (one document from each list).

The Lists of Acceptable Documents page on the Form I-9 includes information about some acceptable receipts. In addition, it has guidance and links to information on automatic extensions of employment and authorization documents.

Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate.

Once an employee has chosen which document(s) to present from the list, the employer examines the documents. If the documents appear to be genuine, belong to the individual presenting them, and appear on the Lists of Acceptable Documents, the employer should use the documents provided to complete Section 2 of the Form I-9. If the employer believes that the documents are not valid or do not belong to the person presenting them, the employer may express this concern to the employee and ask the individual to present alternate documentation.

Employers are not expected to be document experts. Rather, they are expected to examine the document(s) presented by employees and, if they reasonably appear to be genuine and to relate to the person presenting them, the employer must accept them.

If an employee fails to produce the required document(s) or an acceptable receipt (in the case of lost, stolen, or destroyed documents) within three business days of the date paid employment begins, the employer may not continue to employ the individual.

Filling out review and verification (Lists A, B, and C) in Section 2

• The review and verification portion of Section 2 must be filled out by the employer (or a representative of the employer), NOT the employee.
• Documents that have already expired are not acceptable.
• If information is entered under List A, nothing needs to be written in the List B or List C columns.

The employer, or a representative of the employer, fills out the fields in Section 2 of the form. Here are some details on how to enter the information:

The headings on each line apply to the same spaces in all three columns (List A, List B, and List C). Under List A, there are three spaces for document numbers. This does not mean that an employer should require three List A documents. The extra spaces are meant to accommodate List A items that are actually a combination of documents.

For instance, a foreign passport accompanied by a Form I-94 will require more than one space, even though together these documents constitute one item on List A. For an individual with a foreign passport who is also an exchange visitor (such as a student exchange visitor), the number from the person’s Form DS-2019 (the employee’s student exchange visitor [J-1] number) would also be required.

These fields are in the review and verification portion of Section 2:

• Document title: This is the title of the document as listed on the Lists of Acceptable Documents. In Column A, the document title might be “U.S. Passport,” “U.S. Passport Card,” or “Employment Auth. Document (Form I-766),” for example. Note that the instructions for the Form I-9 contain an extensive legend detailing what employers should enter in the “Document Title” field based on the document presented.
• Issuing authority: This is the agency or entity that issued the document. For example, for a driver’s license, it might be the state Department of Motor Vehicles (DMV is an acceptable abbreviation). For a foreign passport, the issuing authority would be the country that issued the passport.
• Document number: Most documents will carry a document number. For a U.S. Passport, this is the passport number; for a driver’s license, this is the driver’s license number; and for a Social Security (SS) card, it’s the employee’s Social Security number (SSN).
• Expiration date: Many (but not all) documents have expiration dates. These should be listed even if the employee’s documentation provides permanent work authorization and therefore does not need to be reverified (as in the case of a Permanent Resident Card, for example). Social Security (SS) cards and birth certificates are examples of two documents which do not carry expiration dates.

If a document uses text rather than a date to indicate when it expires, enter the text as shown on the document, such as “D/S” (which means “duration of status”). Employers must remember that documents are not acceptable if they have already expired.

Students and exchange visitors

If the employee is a student or exchange visitor who presented a foreign passport with a Form I-94, the employer should also enter the student’s Form I-20 or DS-2019 number (Student and Exchange Visitor [SEVIS] number) and the program end date from Form I-20 or DS-2019.

For cap-gap extension situations, enter the receipt number from the Form I-797C, Notice of Action as the Document Number, in Section 2.

If information is entered in the List A column, no document information or should be in List B or List C columns.

For F-1 students in a cap-gap situation:

• Enter Employment Authorization Document (EAD) as the document title,
• Enter the Form I-797C receipt number in the Document Number field,
• Enter September 30 and the year filed the petition in the Expiration Date field, and
• Enter CAP-GAP in the Additional Information field.

In some cases, the USCIS automatically extends the expiration date of an Employment Authorization Document. The Lists of Acceptable Documents page on the Form I-9 includes a link to information about automatic extensions of employment authorization documentation.

How to complete Section 2

• All document information should be recorded in the designated area.
• The “First Date of Employment” section should state the date that the employee started work for pay, not the hire date.

Document information: The employer will record the title, issuing authority, document number (if any), and expiration date (if any) of the document(s) provided by the employee. The employer cannot specify which documentation an employee may present from the Lists of Acceptable Documents. The employer may use abbreviations for commonly used documents and agencies (e.g., “DL” for driver’s license and “SSA” for Social Security Administration), as long as the abbreviations are easily recognizable. An abbreviation that might only be understood locally should not be used.

Additional information: This space is to be used to record additional information that is sometimes required for the Form I-9, including:

• Notations required by the DHS, such as extensions of employment authorization or the expiration date of a document.
• Replacement document information, if a receipt was previously presented.
• Additional documentation presented by a nonimmigrant employee.

Optional information may also be entered, including:

• Termination dates
• Form retention date
• E-Verify case numbers, if applicable

Alternative procedure checkbox: This box is checked if the employer used an alternate procedure for document examination. Only employers participating in E-Verify are eligible to use an alternate procedure.

Certification: The statement included here is the employer’s attestation to having examined the documents presented by the employee.

Employee’s first day of employment: The date the employee began employment is recorded in the box next to the certification. This is the date the employee started working for pay (wages or other remuneration), not the hire date. In some cases, these dates may not be the same, so the first-day-of-employment date should match the employer’s payroll records. Temporary staffing agencies may enter the first day the employee was placed in a job pool. Recruiters and recruiters for a fee do not enter the employee’s first day of employment.

Name and signature of employer or authorized representative: The employer or employer’s authorized representative fills in the name and signature blocks and also enters the current date. The individual that signs in this section must be the individual who physically examines the employee’s original document(s) and completes Section 2.

Employer’s business or organization name and address: The employer’s business or organization name and address is entered in the spaces at the bottom of the form. If the company has multiple locations, the USCIS indicates that the employer should use the most appropriate address that identifies the employer with respect to the employee (e.g., the address where the Form I-9 is completed).

Minors and individuals with disabilities

• A parent or legal guardian may present List B identity documents for a minor by completing Section 1 and filling out the appropriate fields.
• Individuals with disabilities may establish identity without a List B document by having a representative, parent, or legal guardian and the employer fill out the Special Placement components (and other appropriate fields) in Sections 1 and 2.

In some cases, a minor or individual with a disability will not be able to present a List B document establishing identity.

Minors

If a person under the age of 18 cannot present an identity document from List B, a parent or legal guardian may establish identity for the minor.

To do this:

• The minor’s parent or legal guardian completes the minor’s information in Section 1 and checks the box by the minor’s status;
• The parent or legal guardian enters “minor under age 18” in the signature field;
• The parent or legal guardian completes Supplement A, Preparer or Translator Certification for Section 1;
• The employer enters “minor under age 18” under List B and records the List C document the minor presents;
• The employer reads “Certification” paragraph and enters the date employment began;
• The employer attests to examining the documents provided by signing and dating the signature and date fields, and by printing their own name in the fields below the signature; and
• The employer enters the business name and address.

If the employer participates in E-Verify, the employee must present a List B identity document with a photograph.

Individuals with disabilities

People with a physical or mental impairment who are placed in a job by a nonprofit organization, association, or as part of a rehabilitation program may still establish identity under List B without an identity document. This can be done even if they cannot produce a List B document but still qualify to use the procedures.

To do this:

• In Section 1, a representative of a nonprofit organization, association, or rehabilitation program, parent, or legal guardian:
  • Enters the employee’s information and correct immigration status,
  • Enters “Special Placement” in the signature field, and
  • Completes Supplement A, Preparer or Translator Certification for Section 1.
• In Section 2, the employer:
  • Enters “Special Placement” under List B and records the List C document that the employee with a disability presents;
  • Reads “Certification” paragraph and enters the date employment began;
  • Attests to examining the documents provided by signing and dating the signature and date fields, and by printing their own name in the fields below the signature; and
  • Enters the business name and address.

Entering information about receipts

• Receipts may be accepted by an employer if the new employee has applied for a replacement document for either List A, B, and/or C documents.
• The employer should record the acceptable receipt with expiration date, and the valid document should be presented within 90 days.
• If an employee cannot provide the document for which the receipt was given, a different acceptable document from the lists may be presented instead.

In certain circumstances, employers, recruiters, and referrers for a fee must accept a receipt in lieu of a List A, List B, or a List C document if one is presented by an employee.

As a general rule, receipts are acceptable only for employees who are already authorized to work but have applied for a replacement document (if the original document was lost, stolen, or damaged). The reason for the loss, damage, etc. does not matter. It could be the result of a natural disaster or the employee’s own misplacement.

If a new employee’s document has been lost, stolen, or damaged within three business days of the first day of employment, the employee may present a receipt showing that they applied for a replacement document. A receipt fulfills the verification requirements of the document for which the receipt was issued — either a List A, B, or C document — and is valid for 90 days from the date of hire.

When an employee provides an acceptable receipt, the employer should:

• Record the document title in Section 2 under List A, B, or List C, as applicable;
• Write the word “receipt” and the document title and number in the Document Number space; and
• Write the last day that the receipt is valid in the Expiration Date field.

Employees who present a receipt should provide the replacement document for which the receipt was issued within 90 days from the date of hire. However, this is not always possible. Document delays, changes in status, and other factors could prevent the individual from presenting the replacement document within 90 days.

If the employee does not present the original document for which the receipt was issued within 90 days, but does present, within the 90-day window, other acceptable documentation to demonstrate identity and/or employment authorization, the employer may accept such documentation. In this case, an employer should:

• Complete a new Section 2,
• Attach it to the original Form I-9, and
• Provide a note of explanation in the Additional Information box on page 2 of the Form I-9 or in a separate attachment.

List A document receipt

If the receipt is for a List A document, but the employee cannot present the actual replacement List A document, then the employee may choose to present a different document from List A, or one document each from List B and List C.

List B or List C receipt

If the receipt is for a List B document, but the employee cannot present the actual document by the end of the 90-day period, the employee may choose to present a List A document or a different List B document to satisfy the Form I-9 requirements. If the receipt is for a List C document, and the employee cannot provide the actual document, the employee could present a List A document or another List C document.

Updates

The USCIS periodically updates information about acceptable receipts. The Form I-9 includes a link to a web page with additional details about some acceptable receipts. In addition, the USCIS may automatically extend the expiration date of an Employment Authorization Document. The Lists of Acceptable Documents includes a link to information about automatic extensions of employment authorization documentation.

After expiration

After a receipt expires, or the employee presents a replacement document, the employer should:

• Cross out the word “receipt” and any accompanying document number and expiration date,
• Record the number and other required document information from the actual document presented in the Additional Information field in Section 2, and
• Initial and date the change.

Employment authorization extensions

• The DHS may provide employment extensions for conditional permanent residents, for individuals covered by DED, for employees with certain EAD category codes, and more.

Under certain conditions, the Department of Homeland Security (DHS) may provide employment authorization extensions.

Conditional permanent resident

A conditional permanent resident receives a Form I-551, Permanent Resident Card (also known as Green Card) that is valid for 2 years. When filing Form I-751, Petition to Remove Conditions on Residence, DHS may extend the validity of the Green Card.

Deferred Enforced Departure

DHS may extend Employment Authorization Documents provided to individuals covered by Deferred Enforced Departure (DED).

Employment Authorization Document (EAD) renewal

DHS will automatically extend Employment Authorization Documents (EADs) (Form I-766) for employees with certain EAD category codes who timely file to renew their EAD. An automatic extension also may apply if the United States Citizenship and Immigration Services (USCIS) cannot issue a new EAD before the expiration date of a previous EAD, which sometimes occurs for individuals with Temporary Protected Status (TPS).

F-1 OPT (Optional Practical Training) to H-1B Cap-Gap

A cap-gap is the period between the end of a nonimmigrant student’s F-1 status and the beginning of their H-1B status. An F-1 student in Optional Practical Training (OPT) whose employer timely files an H-1B petition for the student may be eligible to continue working beyond the expiration of their OPT Employment Authorization Document.

F-1 STEM OPT (Optional Practical Training)

F-1 students who timely file a science, technology, engineering, and mathematics (STEM) Optional Practical Training (OPT) extension application will receive an automatic extension if their OPT period expires while their application is pending.

H-1B Specialty Occupations

Employees in the H-1B program may have their status and employment authorization extended if their employer timely files a Form I-129, Petition for a Nonimmigrant Worker, to extend their employment, or if a new employer petitions to become their employer.

H-2A Temporary Agricultural Worker Program

Employees in the H-2A program may have their status and employment authorization extended if their employer timely files a Form I-129, Petition for a Nonimmigrant Worker, to extend their employment, or if a new employer petitions to become their employer.

Other nonimmigrant categories

Employers who timely file Form I-129, Petition for a Nonimmigrant Worker, or Form I-129CW, Petition for a Commonwealth of the Northern Mariana Islands (CNMI)-Only Nonimmigrant Transitional Worker, for CW-nonimmigrants may extend the status employment authorization of their employees.

Temporary Protected Status (TPS)

When DHS extends a Temporary Protected Status (TPS) designation, it may also extend the corresponding Employment Authorization Document.

Automatic extension link

Time periods for automatic extensions are periodically updated by the USCIS. The Lists of Acceptable Documents page on the Form I-9 includes a link to a web page with additional information about automatic extensions of employment authorization documentation.

Interruptions in employment

• If an employee has had an interruption in employment and the employee was expected to return, previously completed Forms I-9 should be maintained and stored.
• If an employee has been terminated and then rehired within three years of the original Form I-9 completion, the employer may choose to retain or replace the original form.
• Several factors must be considered when considering an employee for continued employment, including policy compliance, employment status, etc.

In certain situations, a “new” hire is not considered to have taken place despite an interruption in employment. In case of an interruption in employment, the employer should determine whether the employee is continuing in employment and if the employee has a reasonable expectation of employment at all times.

If it is determined that an employee had a reasonable expectation of employment at all times, the employer should continue to maintain and store the previously completed Form I-9 as if there were no interruption in employment. It is advisable to inspect the previously completed Form I-9 and, if necessary, update the form or conduct a reverification.

If, on the other hand, the employer determines that the employee was terminated and is now rehired, and the rehire occurs within three years from the date the original Form I-9 was completed, the employer may have an option to complete a new Form I-9 or rely on the original Form I-9.

The following situations constitute continuing employment:

• Approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer;
• Promotions, demotions, or pay raises;
• Temporary layoff for lack of work;
• Strikes or labor disputes;
• Reinstatement after a disciplinary suspension for wrongful termination found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement;
• Transfer from one distinct unit of an employer to another distinct unit of the same employer (the employer may transfer the employee’s Form I-9 to the receiving unit); or
• Seasonal employment.

Continuing employment also includes employment with a related, successor, or reorganized employer, provided that the employer obtains and maintains from the previous employer records and Forms I-9 where applicable. A related, successor, or reorganized employer includes:

• The same employer at another location;
• An employer who continues to employ some or all of a previous employer’s workforce in cases involving a corporate reorganization, merger, or sale of stock or assets; and
• Employers who have acquired or merged with another company.

Considerations for continuing employment: To determine whether an employee is continuing employment and had a reasonable expectation of employment at all times, the employer should consider several factors, including, but not limited to:

• Whether the individual was employed on a regular and substantial basis. A determination of a regular and substantial basis is established by a comparison of other workers similarly employed by the employer;
• Whether the individual complied with the employer’s established and published policy regarding the absence;
• Whether the employer’s past history of recalling absent employees for employment indicates a likelihood that the individual in question will resume employment with the employer within a reasonable time in the future;
• Whether the former position held by the individual has been taken permanently by another worker;
• Whether the individual has sought or obtained benefits during the absence from employment with the employer that are inconsistent with an expectation of resuming employment within a reasonable time in the future;
• Whether the financial condition of the employer indicates the ability of the employer to permit the individual in question to resume employment within a reasonable time in the future; and/or
• Whether the oral and/or written communication between employer, the employer’s supervisory employees, and the individual indicates that it is reasonably likely that the individual will resume employment within a reasonable time in the future.

Reverification

• The employer must reverify employee documents and the Form I-9 when a temporary work authorization expires.
• There is no need to reverify List B documents.
• The employment eligibility of U.S. Citizens and noncitizen nationals does not need to be reverified.

Expired authorization

When an employee’s temporary work authorization expires, the employer must reverify that the employee is still authorized to work in the United States. The reverification must be completed by the earlier of:

• The employment authorization date stated in Section 1 (if applicable) or
• The expiration date of the List A or List C employment authorization document recorded in Section 2 .

If another reverification is required, it should be completed by the expiration date of the List A or List C documentation entered during the employee’s most recent reverification.

Reverification documents

To reverify work authorization, employees must present a document that shows current employment authorization. This is any document from List A or List C. There is no need to reverify List B documents.

Just as with initial I-9 verification, employees whose Forms I-9 require reverification must be allowed to choose which document they wish to present for reverification. An employee is not required to show the same type of document that was presented previously. Employers who require employees to present specific documentation for reverification purposes could be at risk for a discrimination charge.

Reverification

Employers use Supplement B (formerly Section 3) of the Form I-9 to reverify an employee’s work authorization. Employers must use a current version of the form.

When reverification is required, employers only need to complete and retain the supplement page. Information relating to the name of the employer and employee, documents, and dates is entered in the appropriate fields. The form is signed by the employer or the employer’s authorized representative.

E-Verify employers may use an alternative procedure to examine the documents for remote employees. When this procedure is used for reverification, the appropriate box is checked on Supplement B.

Additional supplement pages are used as necessary. The supplement page is attached to the employee’s completed Form I-9.

Employees are not required to show the same type of document they presented previously.

When is reverification not required?

U.S. citizens and noncitizen nationals never need reverification. Lawful permanent residents (including conditional residents) who present a Permanent Resident Card (Form I-551 or other documentation authorizing employment do not need to be reverified. In addition, reverification may not apply to certain noncitizens, as detailed in the Form I-9 Handbook for Employers, M-274.

Do not reverify the following documents:

• An expired U.S. Passport or Passport Card,
• An unrestricted Social Security card,
• A noncitizen Registration Receipt Card/Permanent Resident Card (Green Card) (Form I-551), or
• A List B document, even if it has expired.

Discrimination

• The best way for employers to avoid discrimination is to provide all workers with the Lists of Acceptable Documents and explain how the process works.
• Employers should not ask specific questions about the nature of an applicant’s work authorization before an offer of employment has been made and accepted.
• Employers should consider only whether or not an individual is authorized to work when making hiring decisions, and not on what basis that employee is authorized.

Citizenship or immigration status discrimination occurs when an employer treats employees differently based on their real or perceived citizenship or immigration status with respect to hiring, firing, recruitment, or referral for a fee. United States citizens, permanent residents, temporary residents, asylees, and refugees are all protected. Employers that prefer to hire temporary foreign visa workers over available, qualified U.S. workers may also be discriminating in violation of this law. The Immigration and Nationality Act’s (INA’s) provision against citizenship or immigration status discrimination covers employers with four or more employees.

Employers should not ask specific questions about the nature of an applicant’s work authorization before an offer of employment has been made and accepted. They may ask if an applicant is authorized to work in the United States.

To avoid discrimination, employers should consider only whether or not an individual is authorized to work when making hiring decisions. Considering on what basis an individual is authorized to work or for how long that individual will be authorized may make an employer susceptible to a discrimination claim.

Avoiding discrimination

To avoid some discrimination pitfalls, employers should:

• Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing;
• Accept any valid documents the employee presents for the Form I-9;
• Accept documents that reasonably appear to be genuine;
• Avoid “citizen only” or “permanent resident only” hiring policies. In most cases, it’s illegal to require job applicants to have a particular immigration status;
• Give out the same job information over the telephone to all callers and use the same application form for all applicants for a particular position or class of positions;
• Base all employment decisions on job performance or behavior, instead of on appearance, accent, name, or citizenship status; and
• On the I-9 form, a representative of the employer must verify that documents establishing identity and work authorization for each new employee have been seen.

Requesting specific documents

In an attempt to make the I-9 process easier for employees, many employers may be tempted to suggest that employees bring in a driver’s license and Social Security (SS) card. However, even such a well-intended recommendation can be seen as discriminatory.

The best way for employers to help employees while still avoiding the risk of discrimination is to provide all workers with the Lists of Acceptable Documents and explain to them that they may present one List A document or a combination of one List B document and one List C document.

Employers should explain I-9 documentation requirements to employees in the same way, no matter what type of work authorization an individual might have.

Employers should not:

• Improperly request that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
• Improperly request that an employee present a particular document, such as a Permanent Resident Card (Green Card), to establish identity and/or employment authorization;
• Improperly reject documents that reasonably appear to be genuine and to relate to the employee presenting them; or
• Improperly treat groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents the employer does not require other employees to present.

False documentation

• It is important to verify that all documents provided for the Form I-9 are accurate and valid.
• Employees who provide false documents do not need to be terminated if valid documents can be provided in a reasonable amount of time.
• Employers who accidentally accept false documents are not held responsible for the mistake but should take action to acquire valid documents to replace the false ones.

False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. While employers are not expected to be document experts, there are some clues to can look for to ensure that an employee’s documents are valid:

• On most modern documents, photos are computer generated right onto the card;
• In genuine documents, detail in logos and in the edges and borders of the card will be clear and distinct, while on fake documents, these lines and borders are often blurred; and
• Some modern documents have holograms on the front or back, which become visible when the card is tilted.

The employer will not be held responsible if a false document is inadvertently accepted because the document reasonably appeared to be genuine or to relate to the person presenting it.

What if a false document is accidentally accepted?

If an employer discovers that it inadvertently accepted illegitimate documentation, the employer should question the employee regarding the information provided. If the employer concludes that the documentation is not legitimate, the employer should ask the employee to provide proper I-9 documentation. If the employee can provide it, the employer should update the Form I-9 either by completing a new form and attaching it to the original or by updating the original form (if it is still valid for use).

Note that employers are not required to fire employees who provide false documentation but are able to correct the problem, although employers may choose to do so if their company policy allows termination for providing false documents or information.

If an employer knows that an employee is not authorized to work in the U.S., the employer may not continue to employ the individual.

Allow employees time to provide acceptable, valid documents

If the employee claims to be work authorized, the employer should provide the employee with a reasonable amount of time to address any deficiencies associated with the Form I-9. The employer should not dismiss the employee without providing a process for resolving the discrepancy.

The United States Citizenship and Immigration Services (USCIS) indicates that the “reasonableness” of such a time period should be determined on a case-by-case basis (and employers must remember that some documents may take up to — or even more than — 120 days to obtain). Employers must consider the specific nature of the deficiency and the time required for alternative Form I-9 documentation. In such situations, employers also must remember that they should accept any document or combination of documents that satisfy the I-9 requirements: Employees do not need to present the same document(s) that were originally presented.

Once an employer has provided an employee in such a situation with a reasonable amount of time to resolve a discrepancy, the employer should terminate employment if the employee was unable to correct the issue in that time frame. Of course, if the employee can provide proper documents at a later date, the employer may always rehire that person.

When to retain or purge forms

• Employees keep the Form I-9 for three years after the employee’s hire date or one year after the date employment ends, whichever is later.
• When deciding how to handle newly acquired employees through a merger or company acquisition, employers must be careful when choosing whether to fill out new Forms I-9 for each acquired employee or to retain the previous employers’ Forms I-9.

When an employee stops working for an employer, the employer should calculate how much longer to keep the Form I-9:

Once employment is terminated, the employer must keep the employee’s Form I-9 for a total of three years after the employee’s date of hire or one year after employment ends, whichever is later.

If the employee works for a company for less than two years, the form is kept for three years after the date the employee is hired.

If the employee works for a company for more than two years, the form is kept for one year after the date employment ends.

For example, If an employee quits after six months, the employer still needs to maintain the I-9 for a total of three years after the date of hire, not just one year after termination.

After the retention period ends, the forms may be destroyed.

Current employees

Retain the Form I-9 for all current employees, even if the employees have been with the company for many years.

Storage

Employers may retain Form I-9 on paper, microfilm or microfiche, or electronically. They need to retain only pages that they and their employee wrote information on. Employers don’t need to keep the Lists of Acceptable Documents page or the instructions.

Mergers and acquisitions

Employers who have acquired or have merged with another company have two options with regard to Forms I-9. Either:

1. Treat all acquired employees as new hires and complete a new Form I-9 for each and every individual regardless of when that individual was originally hired. Enter the effective date of the acquisition or merger as the date the employee began employment in Section 2 of the new Form I-9, or
2. Treat acquired individuals as employees who are continuing in their uninterrupted employment status and retain the previous owner’s Forms I-9 for each acquired employee. Employers who choose this option are liable for any errors or omissions on the previously completed Forms I-9. It may be wise for employers to review existing I-9 forms with each respective employee and update or reverify the employee’s information, as necessary.

Employers should choose just one option and use it consistently for all employees to avoid creating the impression of discrimination.

Some employers choose to review the previous employer’s Forms I-9 before deciding which option is best. An examination of Forms I-9 might even be part of the new employer’s process of deciding whether or not to move forward with a merger or acquisition.

Getting selected for an audit

• Once an employer is selected for an I-9 audit, certain steps may be taken to make the process easier for both the employer and its employees.
• Following an audit, the employer has 30 days to negotiate or request a hearing in response to any fines for violations.

No one wants to experience an Immigration and Customs Enforcement (ICE) audit,but some steps can make it easier if an employer is selected for such an audit. Some such steps include the following:

If selected for an I-9 audit:

• Develop a transparent process for interacting with employees during the audit, including communicating with employees that the organization is subject to an ICE audit;
• Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with similar discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I-9 documents to present;
• If workers are represented by a union, inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations;
• Inform employees from whom specific information is sought that it is being sought in response to an ICE audit;
• Communicate in writing with such employees, and describe the specific basis for the discrepancy and/or what information is needed from them. Follow the instructions on the ICE notice and the instructions for the Form I-9 when seeking to correct Form I-9 defects, including the Lists of Acceptable Documents and the anti-discrimination notice;
• Do not selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE Notice of Inspection; Do not terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents;
• Do not require employees to provide additional evidence of employment eligibility or more documents than ICE requires;
• Do not limit the range of documents that employees are allowed to present for purposes of the Form I-9; and
• Do not treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.

After the audit

Once ICE has reviewed a company’s forms, the employer may receive any of the following notices:

• Notice of inspection results: Used to notify a business that it was found to be in compliance.
• Notice of suspect documents: Advises the employer of ICE’s determination that an employee is not authorized to work. The employer and employee will have the opportunity to demonstrate work authorization if they believe the finding is in error.
• Notice of discrepancies: Advises the employer that ICE cannot determine the work eligibility of an employee. The employee will have the opportunity to present additional documentation to establish work eligibility.
• Notice of technical or procedural failures: Identifies technical (paperwork) violations found during the inspection. Employers have 10 business days to correct these errors or risk the mistakes becoming substantive violations.

At an audit’s conclusion, ICE will issue a “notice of intent to fine” for any remaining violations. The employer has 30 days to negotiate a settlement or request an administrative hearing. An employer that does neither will be issued a final order and will be liable for the penalties assessed by ICE.

Self-audits

• Fixing errors found through the self-audit process can help avoid penalties while demonstrating the company’s efforts to meet requirements.
• Employers may choose to review only a sample of Forms I-9, but they must ensure that the sample is selected based on neutral and nondiscriminatory criteria.
• Errors are likely to be found, so employers that are not prepared to fix errors should consider not going through the process of an audit in the first place.

Self-audits can be a good idea to help employers uncover problems while they can still be corrected and before they result in sanctions.

Fixing these mistakes can help employers avoid costly penalties and also demonstrates good-faith efforts to meet the verification requirements. If discovered by the government, however, the same errors could be very costly.

Employers that do choose to conduct an I-9 audit must not audit forms selectively. Auditing only the forms of individuals who are not apparent U.S. citizens is a form of discrimination and should absolutely be avoided. While employers may choose to review only a sample of Forms I-9, they must ensure that the sample is selected based on neutral and nondiscriminatory criteria.

If an employer has reason to believe that I-9 forms are not in order, the best course of action is likely to audit the forms of the entire workforce.

Addressing errors

Employers that choose to conduct an I-9 audit must also keep in mind that conducting an audit means that errors will likely be uncovered. Employers that are not prepared to fix errors that are uncovered should consider not going through the process of an audit in the first place.

If I-9s contain (or are missing) information that calls into question whether an individual is truly authorized to work in the U.S., and the company knows about the violation but doesn’t attempt to fix it, the organization could be guilty of knowingly allowing an individual to work without proper authorization. This is a considerably more serious offense than errors made in good faith.

Penalties

• Fines and/or penalties can result from various types of I-9 violations, and civil or criminal penalties may be imposed by the DHS.
• Some top violations include employing unauthorized noncitizens, failing to make forms available upon inspection, and failing to properly complete and retain forms.
• Employees with I-9 responsibilities could be held personally liable for errors and omissions related to the Form I-9.

Fines for Form I-9 noncompliance can be significant, though they depend on the nature of the violation. Penalties may be assessed if the Form I-9 is not properly completed or if employment discrimination occurs during the employment eligibility process.

Employers have even been arrested on criminal charges for violations like knowingly making false statements on the I-9 or knowingly hiring individuals who are not authorized to work.

Fines and/or penalties can also result when forms are missing, when employers make paperwork errors, when documentation is not properly recorded or temporary work authorization has expired and has not been reverified, or when an employer’s electronic storage system does not meet requirements.

By signing the form, employees attest that the information they provided, the citizenship or immigration status they selected, and all documentation provided to the employer is true and correct. When employers sign the form, they are attesting that they have physically examined the documentation presented by the employee and that the documentation reasonably appears to be genuine and relate to the employee. In addition, the employer signature indicates that, to the best of their knowledge, the employee is authorized to work in the United States and that the information entered in Section 2 is complete, true and correct. The signature also acknowledges that the employer is aware of the civil or criminal penalties, or criminal prosecution, that could be brought for knowingly and willfully making false statements or knowingly accepting false documentation when completing the Form I-9.

Civil penalties

The Department of Homeland Security (DHS) or an administrative law judge may impose penalties if an investigation reveals that an employer knowingly hired or knowingly continued to employ an unauthorizednoncitizen/foreign national or failed to comply with the employment eligibility verification requirements with respect to employees hired after November 6, 1986.

Hiring or continuing to employ unauthorized noncitizens

If DHS or an administrative law judge determines that an employer has knowingly hired unauthorized noncitizens/foreign nationals (or are continuing to employ noncitizens knowing that they are or have become unauthorized to work in the United States), the employer may be ordered to cease and desist from such activity and pay a civil money penalty for each offense.

Failing to comply with Form I-9 requirements

Failing to properly complete, retain, and/or make Form I-9 available for inspection as required by law can bring fines. Paperwork violations, such as failing to properly complete the form or make the forms available for inspection, can bring a penalty of $252 to $2,507 for each violation.

In determining the amount of the penalty, DHS considers:

• The size of the business of the employer being charged,
• The good faith of the employer,
• The seriousness of the violation,
• Whether or not the individual was an unauthorized noncitizen/foreign national, and
• The history of previous violations of the employer.

Criminal penalties

Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized noncitizens/foreign nationals (or continuing to employ noncitizens knowing that they are or have become unauthorized to work in the United States) after Nov. 6, 1986, may face fines and/or six months imprisonment.

Individuals who use fraudulent identification or employment authorization documents or documents that were lawfully issued to another person, or who make a false statement or attestation to satisfy the employment eligibility verification requirements, may be fined, imprisoned for up to five years, or both. Other federal criminal statutes may provide higher penalties in certain fraud cases.

Personal liability

Many employers work hard to communicate the importance of I-9 compliance to employees whose job it is to complete the form with other employees, but not everyone understands how serious the seemingly simple form can be. Employees with I-9 responsibilities may be interested to know that they could be held personally liable for errors and omissions related to the Form I-9.

Additional E-Verify requirements

• Both an E-Verify and the “Right to Work” posters are required to be posted in plain view at the employer’s hiring site to inform employees that the organization participates in the program.
• It is the employer’s obligation to safeguard all private employee information documented in the E-Verify system.
• E-Verify is only mandatory for federal contractors and employers in states that require the system.

Poster requirement

All employers that participate in E-Verify are required to post, in plain view at the hiring site, the English and Spanish E-Verify poster provided by the Department of Homeland Security (DHS). The poster indicates to both current and prospective employees that the organization participates in the E-Verify program.

The “Right to Work” poster, issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), must also be displayed in plain view.

Employers may also display the posters in other languages provided by the DHS. Both notices can be found in the “View Essential Resources” section of E-Verify after the employer has logged in.

If an employer cannot display the posters, they must be printed and distributed to every job applicant.

Privacy and recordkeeping

The E-Verify system requires the collection and use of employees’ personal information, and it is the employer’s responsibility to safeguard the information and ensure that it is used only for the purposes outlined in E-Verify’s Memorandum of Understanding (MOU), to which all participating employers are required to agree.

Failure to properly protect individual’s information can result in identity theft or fraud, and can result in considerable inconvenience, harm, or embarrassment to the individuals affected. At a minimum, E-Verify employers should:

• Allow only authorized employees to use E-Verify,
• Secure access to E-Verify,
• Protect and store individuals’ information properly, and
• Discuss E-Verify results with employees only in private.

Record retention: To minimize security and privacy risks, E-Verify disposes of all records that are 10 years or older. Records older than 10 years will be disposed of annually on January 1. This process does not affect the Form I-9 retention requirements imposed on employers, but employers should be aware of which records they will or will not be able to access within the E-Verify system.

Mandatory for some

While the Immigration Reform and Control Act (IRCA) of 1986 requires all employers in the United States to complete a Form I-9 for new employees, use of the E-Verify system is only mandatory for some employers.

E-Verify is mandatory for:

• Federal contractors, and
• Employers in states requiring use of the E-Verify system.

For more information on state laws, see the State-Specific information section.

Steps before enrolling in the E-Verify system

• Before enrolling in the E-Verify system, several steps need to be taken to ensure the enrollment process is completed in a single website session.
• Employers should avoid attempting to enroll a company that has already been enrolled, as this can cause significant delays.

Employers who participate in the program can register for E-Verify online. Once the enrollment process is complete, the United States Citizenship and Immigration Services (USCIS) will review the information and activate the account. After the account is activated, the employer will receive an email with login instructions, user ID, and password.

Before enrolling, employers must ensure that the company is not already enrolled. Attempting to enroll a company that has already been enrolled can result in significant delays.

To enroll in E-Verify, an employer must be able to answer several questions. Additionally, the enrollment process must be completed in a single website session; users may not return to an enrollment session and complete it at a later date. As such, users should refer to the following checklist to ensure they have all the information necessary to complete the enrollment process.

Before a company enrolls, it must decide:

• Who will electronically sign the E-Verify Memorandum of Understanding (MOU) on behalf of the company?
• Which hiring sites will participate in E-Verify?
• If the employer is a federal contractor with the Federal Acquisition Regulation (FAR)E-Verify clause, which employees will it verify?
• Which company location(s) will access E-Verify? Who in the company will have access to E-Verify?
• Who in the company should be a program administrator?

To enroll, users will need to know:

• Contact information for the company’s E-Verify MOU signatory (name, phone number, fax number, and email address);
• Company name;
• “Doing business as” name (optional);
• Data Universal Numbering System (DUNS) number (optional);
• The physical address of the location from which the company will access E-Verify (including county);
• Company mailing address (if different from the physical address);
• Employer identification number (also called a federal Tax ID Number);
• Total number of employees for all of the company’s hiring sites that will participate in E-Verify;
• Parent organization (optional);
• Administrator name (E-Verify corporate account) (optional);
• The first three digits of the company’s primary North American Industry Classification System (NAICS) code (the E-Verify system can help users find this number during enrollment); and
• The number of hiring sites that will participate in E-Verify in each state.

For all registered users, the company must provide:

• Name,
• Phone number,
• Fax number (optional), and
• Email address.

Enrollment and registration in the E-Verify system

• There are 12 steps in the enrolling process that should be followed for successful company enrollment.
• There is no limit to the number of users that can be registered to an enrolled employer.

Enrollment in E-Verify consists of the following steps:

1. Visit the enrollment website and accept terms. Users must read and agree to the terms explained before they may continue.

2. Determine access method. The access methods include:

• Employer,
• E-Verify employer agent,
• Corporate administrator, or
• Web services access (for employers or for E-Verify employer agents).

E-Verify will guide the user through four questions to help determine which access method is right for that particular company.

3. Review and confirm access method. E-Verify gives users an opportunity to review their enrollment answers and to confirm that the access method selected fits their company’s needs.

4. Select organization designation. Designate if the company is a federal contractor with or without the Federal Acquisition Regulation (FAR) E-Verify clause or a federal, state, or local government organization.

5. Review and agree to the Memorandum of Understanding (MOU). Review the company’s obligations as explained in the MOU and indicate whether the user agrees with the terms.

6. Enter MOU signatory information. Enter the contact information of the person who electronically signed the MOU.

7. Enter company information. Enter company details, including:

• The company’s name,
• The parent organization,
• The physical verification location,
• The company’s mailing address,
• The employer identification number (EIN), and
• The total number of employees.

8. Enter or select North American Industry Classification System (NAICS) Code. Enter the first three digits of the company’s NAICS code.

9. Provide hiring site information. Enter the number of hiring sites that will participate in E-Verify for each state.

10. Register E-Verify program administrators. Register as many program administrators as needed.

11. Review and certify information. Any necessary changes should be made before the user certifies and submits enrollment.

12. Print signed MOU. The enrollment confirmation page confirms that E-Verify has received a company’s enrollment information. Users should print a copy of the MOU that was electronically signed and share it with the company’s human resources (HR) manager, legal counsel, and other appropriate staff.

Registration on E-Verify

After a company has enrolled in the E-Verify program, program administrators may register general users and additional program administrators at any time after completing the E-Verify tutorial. Registered users create cases in E-Verify. There is no limit on the number of users an enrolled employer can register.

When registering a new user, the program administrator may accept a system-generated ID or create a custom user ID. The program administrator then creates a temporary password, which must be given to the new user. These E-Verify users must comply with the MOU, complete the E-Verify tutorial, and pass the knowledge test.

Most enrolled companies have different people who use E-Verify to create cases. There is no limit on the number of users an enrolled company can register to create cases.

Using the E-Verify system

• E-Verify may only be used for newly hired employees.
• Form I-9 is not replaced by the E-Verify system, and all I-9s for new employees must be complete, correct, and have all necessary document copies obtained.
• The employer must wait to create a case in E-Verify while the employee is waiting for replacement documents for the Form I-9, even if the employee presents a receipt.

Employers who participate in E-Verify voluntarily must use the system to verify all new employees regardless of national origin or citizenship status. Since the E-Verify system utilizes information provided by employees in sections 1 and 2 of the Form I-9, E-Verify employers should make sure that an employee’s Form I-9 is filled out correctly, and that it is properly signed and dated before attempting to use the E-Verify system.

Employers who use the E-Verify system voluntarily are not permitted to verify the employment authorization of existing employees; the E-Verify system may only be used for newly hired individuals.

Employers begin using E-Verify for all new hires on the date that the E-Verify Memorandum of Understanding (MOU) is signed.

Form I-9 still required

E-Verify does not replace the Form I-9 process. Employers are required to complete Form I-9 within three business days of the date employment (work for pay) begins and to keep a record of the form on file. This requirement does not change for employers enrolled in E-Verify. Employers enrolled in E-Verify have chosen to take the additional step of verifying that the employee’s Form I-9 information matches government records.

Section 1 must contain the employees Social Security number (SSN), or else one must be obtained from the Social Security Administration (SSA). When completing Section 2, all List B document(s) presented to an employer participating in E-Verify MUST contain a photograph.

If the employee presents a U.S. Passport or Passport Card, a Permanent Resident Card/Green Card (Form I-551) or an Employment Authorization Document (Form I-766), the employer must obtain a copy of the employee’s document.

When the E-Verify process is complete, the employer will receive a case verification number. This number must be recorded on the employee’s Form I-9. The employer might choose instead to print the screen containing the case verification number and attach the printout to the employee’s Form I-9.

E-Verify and receipts for missing documentation

In the case of a stolen, lost, or damaged document that requires a replacement receipt from an employee to complete Form I-9, the employer must wait until the employee presents the actual document for which the receipt was presented before a case can be created. The employer must create a case within three business days from the date the employee presents the actual document.

Any time an employer is unable to create a case in E-Verify within three days after the employee starts working for pay, the E-Verify system will prompt the employer to enter the reason for the delay. Where this prompt appears, employers should select “Other” and type “Awaiting actual document” in the field provided.

Some receipts, however, still require the employer to create a case in E-Verify by the third business day after the employee starts work for pay. These include:

• The arrival portion of Form I-94/I-94A with a temporary I-551 stamp and a photograph of the individual, and
• The departure portion of Form I-94/I-94A with a refugee admission stamp.

While an E-Verify user may use the system for new hires before they actually begin work (as long as a job offer has been made and accepted), users may not utilize the E-Verify system

Remote review of employment verification documents

An employer in E-Verify can use an alternate procedure to review employment verification documents. To use the alternative procedure, an employer must be a participant in good standing in E-Verify. This means that the employer:

• Has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure;
• Is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and
• Continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure.

Employers not enrolled in E-Verify may only use the remote review procedure after becoming a participant in good standing in E-Verify. To do this, they must enroll and receive the required training.

Be consistent

An employer choosing to offer the alternative procedure to new employees at an E-Verify hiring site must offer the procedure consistently for all employees at that site.

An employer may offer the alternative procedure only to remote hires and require those who work onsite or in a hybrid capacity to use the physical examination procedures. However, an employer must not do this for a discriminatory reason or treat employees differently based on their citizenship, immigration status, or national origin.

Copy retention required

An employer using remote document review must retain a clear and legible copy of all documents presented by the employee. This allows the DHS to assess the documents in the event of an audit and help to determine whether the documents reasonably appeared to be genuine and relate to the employee. It also helps the DHS assess whether discrimination has occurred and the employer has complied with other Form I-9 requirements.

Fraud awareness training

Employers enrolling in E-Verify, and any users who manage and create E-Verify cases, must complete an E-Verify tutorial that includes fraud awareness and antidiscrimination training. The free training is accessed as part of the E-Verify enrollment process.

The training:

• Provides an overview of fraud indicators in identity and employment eligibility documentation, and
• Describes how an employer can examine Form I-9 documentation at various angles to help identify common document anomalies.

Conducting a remote review of employment verification documents

The review of an employee’s documents must be completed within three business days of an employee’s first day of employment. The review is conducted by a qualified employer or an authorized representative acting on such an employer’s behalf, such as a third-party vendor.

Before the employer begins the document review the employee must transmit a copy of the document or documents to the employer.

Employers choosing to use the alternative procedure must:

1. Examine copies of Form I-9 documents or an acceptable receipt presented by the employee to ensure that the documentation presented reasonably appears to be genuine. If a document is two-sided, both sides are examined.
2. Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The individual presents the same document or documents that were transmitted to the employer.
3. Check the box on the Form I-9 indicating that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable.
4. Retain a clear and legible copy of the documentation. If the documentation is two-sided, a copy of the front and back must be retained.
5. Make the clear and legible copies of the identity and employment authorization documentation presented by the employee available during an audit or investigation by a relevant federal government official.

If an employee does not want the employer to use the alternative procedure, the employer must allow the employee to submit documentation for physical examination.

Employers must create an E-Verify case for all newly hired employees, whether or not the alternative procedure is used for document review.

Creating a case

• An E-Verify case may be completed no later than three business days after the employee begins work for pay, but can be completed earlier if the job has been offered and accepted, and the employee’s Form I-9 is complete.
• There are five steps to the initial case creation process that must be completed by the employer based on the employee’s Form I-9.

Once an employee’s Form I-9 has been completed, the employer’s next step is to create a case for the employee in E-Verify no later than the end of the third business days after the employee begins work for pay. All new, temporary, seasonal, and rehired employees must be entered into E-Verify individually. An E-Verify case may be created before an employee begins work for pay as long as the individual has accepted an offer of employment and the Form I-9 has been completed. A case is created by taking the information from an employee’s completed Form I-9 and entering the information into the E-Verify system.

A case cannot be created in E-Verify without a Social Security number (SSN) from an employee. If a newly hired employee does NOT have an assigned SSN, one must be obtained from the Social Security Administration (SSA). Employers must create a case in E-Verify as soon as the employee has received an assigned SSN from the SSA.

In some cases, E-Verify prompts the user to check the information provided or re-create the case before it can provide a case result.

Case creation steps

1. From the E-Verify welcome page, click the drop-down arrow next to “Cases” and select “New Case.”
2. Enter the employee’s information from Section 1 of Form I-9. E-Verify will generate a field error message if the required information is not entered. When entering more than one last name into “Other Last Names Used” field, press the Tab or Enter key after each last name is added. If the employee provided an email address on Form I-9, enter it into E-Verify. E-Verify may send the employee email notifications with information about the E-Verify case. If the employee did not provide an email address on Form I-9, click the box next to “No email address provided.”
3. From Section 1 of the employee’s Form I-9, choose the appropriate option:
   • U.S. citizen
   • Noncitizen national
   • Lawful permanent resident or
   • Noncitizen authorized to work in the United States
4. Click “List A Document” or “List B & C Document” using the information provided in Section 2 of the employee’s Form I-9. Then select the document or combination of documents provided in Section 2.
   
   Employers must wait until employees present replacement documents before creating a case in E-Verify. When E-Verify asks for the reason why this case has not been submitted within three business days, select “Other” and type “Receipt provided. Awaiting actual document” in the field provided. Click “Continue” when prompted. If driver’s license is selected, E-Verify will prompt a state selection.
5. Type the employee’s first day of employment recorded in Section 2 of Form I-9 into the “Employee’s First Day of Employment field.” Alternatively, “Today,” “1 Day Ago,” or “2 Days Ago” may be chosen and the corresponding date automatically populates in the Employee’s First Day of Employment field. If “Other” is selected, the system requires manual entry of the employee’s first day of employment.
   
   If the case is being created 3 or more days past the employee’s first day of employment, a reason for the delay must be provided. Select one of the following reasons from the drop-down menu:
   • Awaiting Social Security number (SSN),
   • Technical problems,
   • Audit revealed that new hire was not run,
   • Other, or
   • Federal Contractor with E-Verify Clause verifying an existing employee.
   If “Other” is selected, E-Verify requires the reason to be typed in the “Reasons for Delay’ text box.
   
   If a date more than 90 business days beyond the current date is entered in the “Employee’s First Day of Employment” field, E-Verify displays an error message informing this date must be between 11/07/1986 and 90 business days in the future. Provide Visa Number when applicable.
   
   “Employee ID” is an optional field for users who wish to assign an internal tracking code to a case. If desired, enter a unique identifier assigned to this case.

E-Verify dos and don’ts

• Employers must follow all the rules and regulations outlined in the MOU, including informing all applicants of E-Verify participation, completing the Form I-9 before creating a case in E-Verify, and more.
• Employers must NOT prescreen applicants using E-Verify, take adverse action against an employee for a TNC result, or commit any other violation of the MOU.
• E-Verify should not be used to reverify the employment authorization of an existing employee, and other action should be taken in the event of an expired form of documentation.

All E-Verify users are bound by the guidelines set forth in the Memorandum of Understanding (MOU) agreement and the rules and responsibilities in the E-Verify User Manual, as outlined by the United States Citizenship and Immigration Services (USCIS).

All employers participating in E-Verify must:

• Follow E-Verify procedures for all new hires while enrolled/participating in E-Verify and notify all job applicants of E-Verify participation;
• Notify each job applicant of E-Verify participation by clearly displaying both the English and Spanish “Notice of E-Verify Participation” and the “Right to Work” poster. (The employer may also display the notices in other languages provide by the Department of Homeland Security [DHS]);
• Complete the Form I-9 for each newly hired employee before creating a case in E-Verify;
• Obtain a Social Security number (SSN) from each newly hired employee on the Form I-9;
• Ensure that all Form I-9 List B identity documents have a photograph;
• Create a case for all newly hired employees no later than the third business day after they start work for pay;
• Provide employees with notice of a tentative nonconfirmation (TNC) and provide them the opportunity to take action on a TNC;
• Allow newly hired employees to start and continue working during the E-Verify verification process, even if they receive tentative nonconfirmation (TNC);
• Ensure that all personally identifiable information is safeguarded; and
• Enter the employee’s email address in E-Verify if it was provided on the Form I-9.

Employers participating in E-Verify must not:

• Create a case for an employee hired before the effective date of the employer’s MOU;
• Use E-Verify to prescreen applicants for employment;
• Check employment eligibility for employees hired before their company signed the E-Verify MOU;
• Take any adverse action against an employee based upon a case result unless E-Verify issues a final nonconfirmation;
• Specify or request which Form I-9 documentation a newly hired employee must use, except to specify that any Form I-9 List B document the employee chooses to present must contain a photo;
• Use E-Verify to discriminate against any job applicant or new hire on the basis of national origin, citizenship, or immigration status;
• Selectively verify the employment eligibility of a newly hired employee; or
• Share any user ID and/or password.

Rehired employees

E-Verify should never be used to reverify the employment authorization of an existing employee.

E-Verify has special rules when employers rehire an employee who previously provided a U.S. Passport, U. S. Passport Card, Permanent Resident Card (Green Card), Registration Receipt Card (Form I-551), Driver’s License, or state ID card for the Form I-9 if the document is expired when the employee is rehired. In these situations, employers have two options:

• If a case wasn’t previously created for the employee in E-Verify (perhaps the employer wasn’t using E-Verify when the individual was an employee), the employee must complete a new Form I-9 and a new case in E-Verify must be created by the employer.
• If an E-Verify case was previously created but did not receive an “Employment Authorized” result, have the employee complete a new Form I-9 and create a case in E-Verify on the employee’s behalf. If an E-Verify case was previously created for this employee and received an employment authorized result, complete Supplement B and do not create a new case for the employee in E-Verify.

The RIDE program

Some states participate in E-Verify’s RIDE (Records and Information from the Department of Motor Vehicles [DMVs] for E-Verify) program. This initiative is an enhancement to the E-Verify program that verifies the validity of driver’s license and ID card information. The data entered by employers is matched against participating state motor vehicle department records. RIDE enables two-part verification by validating the information on select identity documents in addition to the existing employment authorization check.

E-Verify and federal contractors

• Federal contractors with a contract length longer than 120 days and valued above $100,000 ($3,000 for subcontractors) must enroll in E-Verify within 30 days of being awarded a qualifying contract.
• The E-Verify and Right to Work posters must be displayed in English and Spanish to indicate participation in E-Verify program.
• At the end of a federal contract, the employer may continue to use E-Verify but must indicate that it is no longer a federal contractor on its company profile.

Executive Order 13465 requires federal contractors to participate in the E-Verify program. This requirement is meant to ensure that the federal government only does business with companies that have a legal workforce.

Qualifying contracts are those with a contract length longer than 120 days and a value above $100,000. Such contracts will include a Federal Acquisition Regulation (FAR) E-Verify clause committing the contractor to use E-Verify. Such a clause will also be required in subcontracts over $3,000. Though the requirement to use E-Verify will mainly affect new contracts entered into on or after September 8, 2009, previously established contracts that are modified may also contain this clause.

Employers will be asked during the E-Verify enrollment process whether or not they are federal contractors, since the parameters for the system’s use differ for employers with qualifying federal contracts.

Timeframe

An organization must enroll in E-Verify within 30 days of being awarded a qualifying contract, and it has 90 days from the date of enrollment to initiate verification of current employees assigned to work on the applicable federal contract.

After that same 90-day period, contractors will also be required to verify newly hired employees within three business days after their start dates, and must continue to verify new employees for the life of the federal contract.

Subcontractors

The E-Verify federal contractor rule requires certain federal prime contractors to require their subcontractors to use E-Verify when:

• The prime contract includes the FAR E-Verify clause,
• The subcontract is for commercial or noncommercial services or construction,
• The subcontract has a value of more than $3,000, and
• The subcontract includes work performed in the United States.

The prime contractor should provide general oversight to subcontractors to ensure that they meet their contractual requirements, which may include enrolling in and using E-Verify.

The subcontractor should provide the prime contractor a copy of the “Maintain Company” page from E-Verify to prove that the subcontractor is enrolled in E-Verify.

Posting requirement for contractors

Federal contractors who participate in E-Verify are required to post the notice provided by the Department of Homeland Security (DHS) indicating their participation in the E-Verify program, as well as the “Right to Work” poster issued by the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices. They must be posted in English and Spanish.

When a federal contract ends

At the end of a federal contract, an employer may choose to continue to use E-Verify but should update its company profile to indicate that it is no longer a federal contractor.

Such employers will no longer be able to confirm existing employees through E-Verify. A company that no longer wishes to participate in the E-Verify program at the end of a federal government contract must officially terminate its involvement in the program.

Nonimmigrant visas: H-1B

• The H-1B specialty occupation visa is for individuals who apply to a job that requires a bachelor’s or higher degree (or its equivalent) because of the specialized nature of the work.
• The individual must have the needed U.S. or foreign degree, or the equivalent of that degree obtained through training, experience, education or a special license/certification.

H-1B: Specialty occupations in fields requiring highly specialized knowledge

The H-1B visa category applies to people who wish to perform services in a specialty occupation. It is the most popular visa classification for foreign students graduating from U.S. universities. To qualify as a specialty occupation, the job must meet one of the following criteria:

• A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position,
• The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree,
• The employer normally requires a degree or its equivalent for the position, or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

For an individual to qualify to accept a job offer in a specialty occupation, the individual must meet one of the following criteria:

• Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
• Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
• Hold an unrestricted state license, registration, or certification which authorizes the individual to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
• Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Nonimmigrant visas: H-1B2 and H-1B3

• An H-1B2 DOD researcher and development project worker must have the needed U.S. or foreign degree, or the equivalent of that degree obtained through training, experience, education or a special license/certification to obtain the visa.
• An H-1B3 Fashion Model must be of distinguished merit and ability to obtain a visa for a job requiring a model who is prominent in the field.

H-1B2: DOD researcher and development project worker

For a job to qualify as a Department of Defense (DOD) cooperative research and development project, the job must meet both of the following criteria:

• The cooperative research and development project or a co-production project is provided for under a government-to-government agreement administered by the U.S. DOD; and
• A bachelor’s or higher degree or its equivalent is required to perform project duties.

To be an eligible worker for this visa category, an individual must meet one of the following criteria:

Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;

Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;

Hold an unrestricted state license, registration, or certification which authorizes the individual to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or

Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

H-1B3: Fashion model

For this classification, the position/services must require a fashion model of prominence. To be eligible for this visa category, the individual must be a fashion model of distinguished merit and ability.

In order to hire an H-1B worker, the prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker.

Nonimmigrant visas: H-1C

• The H-1C visa is for foreign nurses working in the U.S. during a health professional shortage at hospitals located in a shortage area.
• Workers with a H-1C visa can only work in the U.S. for up to three years.
• Only 500 H-1C visas are given each fiscal year, with population-based limits for each state.

H-1C: Registered nurse

The H-1C nonimmigrant temporary worker classification is for foreign nurses coming to the U.S. temporarily to perform services as registered nurses in a health professional shortage area as determined by the Department of Labor (DOL).

Prior to filing a petition with the United States Citizenship and Immigration Services (USCIS) for an H-1C visa, the DOL must provide an attestation to petitioning hospitals certifying that they meet the required qualifications. Among the qualifications, hospitals are required to be located in a “health professional shortage area.”

Employer responsibilities

The Form I-129, Petition for a Nonimmigrant Worker, must be filed by a U.S. employer hospital that has received a notice of acceptance of the attestation for H-1C nonimmigrant nurses from the DOL.

Length of stay

The total stay for an employee under this visa type is limited to three years. An extension of stay to complete the three-year period of admission may be granted, but an extension will not be granted beyond the determined three-year period of time.

Change of employer

H-1C nonimmigrant classification is limited to employment with the specific hospital that filed the petition. A change of employer requires the new employer to file a new Form I-129, Petition for Nonimmigrant Worker. The H-1C worker may not begin working for the new employer until the Form I-129 is approved.

Family of H-1C visa holders

The spouse and unmarried children (under 21 years of age) of H-1C visa holders are entitled to H-4 classification. H-4 is the nonimmigrant classification for dependents of H principal aliens. Dependents may not work in the U.S. under the H-4 classification.

H-1C visa cap

Only 500 H-1C visas will be issued each fiscal year. Also, there are numerical limitations for each state based on the state’s population. The cap for states with populations in excess of 9 million is 50 per fiscal year. The cap for states with populations of 9 million or less is 25 per fiscal year.

Nonimmigrant visas: H-2A

• Petitioners for the H-2A program must submit the appropriate application to the DOL, after which they may submit Form I-129 to the USCIS to apply for temporary labor certification.
• Prospective workers who wish to obtain the H-2A visa must apply with the DOS and seek admission to the U.S. with CBP.
• Prospective workers who are not seeking an H-2A visa to work in the U.S. may seek direct admission with the CBP at a U.S. port of entry.

H-2A: Temporary agricultural workers

The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the U.S. to fill temporary agricultural jobs.

The process of obtaining an H-2A visa is as follows:

• Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL). Prior to requesting H-2A classification from the United States Citizenship and Immigration Services (USCIS), the petitioner must apply for and receive a temporary labor certification for H-2A workers with the DOL.
• Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from the DOL, the employer should file Form I-129 with the USCIS. With limited exceptions, the original temporary labor certification must be submitted as initial evidence with Form I-129. (See the instructions to Form I-129 for additional filing requirements.)
• Step 3: Prospective workers outside the U.S. apply for visa and/or admission. After the USCIS approves Form I-129, prospective H-2A workers who are outside the U.S. must:
  • Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad, then seek admission to the U.S. with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
  • Directly seek admission to the U.S. in H-2A classification with CBP at a U.S. port of entry. This option is for workers who do not require a visa.

H-2A petitioners must include Temporary Labor Certification Final Determination with Form I-129.

Employers who file an H-2A application for a temporary labor certification in the Foreign Labor Application Gateway (FLAG) will only receive the certification electronically.

Nonimmigrant visas: H-2B

• H-2B visas are for foreign individuals to come to the U.S. to fill temporary nonagricultural jobs.
• Petitioners for the H-2B program must submit the appropriate application to the DOL.
• To qualify for H-2B nonimmigrant classification, the petitioner must establish that there are not enough U.S. employees to do the work and that other necessary criteria have been met.

H-2B Temporary nonagricultural workers

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the U.S. to fill temporary nonagricultural jobs.

The process of obtaining an H-2B visa is as follows:

• Step 1: Petitioner submits temporary labor certification application to U.S. Department of Labor (DOL). Before requesting H-2B classification from United States Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers with the DOL.
• Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from the DOL, the employer should file Form I-129 with USCIS. With limited exceptions, the original temporary labor certification must be submitted with Form I-129.
• Step 3: Prospective workers outside the U.S. apply for visa and/or admission. After the USCIS approves Form I-129, prospective H-2B workers who are outside the U.S. must:
  • Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad, then seek admission to the U.S. with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
  • Directly seek admission to the U.S. in H-2B classification with CBP at a U.S. port of entry.

Employer responsibilities

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

• There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
• The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
• The petitioner’s need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):
  • One-time occurrence — A petitioner claiming a one-time occurrence must show that it has:
    • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
    • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
  • Seasonal need — A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
    • Traditionally tied to a season of the year by an event or pattern; and
    • Of a recurring nature.
  • Peakload need — A petitioner claiming a Peakload need must show that:
    • It regularly employs permanent workers to perform the services or labor at the place of employment,
    • It needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
    • Temporary additions to staff will not become part of the employer’s regular operation.
  • Intermittent need — A petitioner claiming an intermittent need must show that it:
    • Has not employed permanent or full-time workers to perform the services or labor; and
    • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

H-2B petitioners must also provide a single valid temporary labor certification from the Department of Labor (DOL).

Nonimmigrant visas: H-3

• H-3 nonimmigrant visas are for individuals coming temporarily to the U.S. to receive training not available in their home country, or for visitors participating in a special education training program to help children.
• This training is done by invitation only and is intended for individuals ultimately planning to work outside of the U.S.
• Trainees may stay in the U.S. if approved for 18 months to two years, depending on status.

H-3: Nonimmigrant trainee or special education exchange visitor

The H-3 nonimmigrant visa category is for an noncitizen/foreign national coming temporarily to the U.S. as either a:

• Trainee to receive training, other than graduate or medical education training, that is not available in the noncitizen/foreign national’s home country; or
• Special education exchange visitor to participate in a special education exchange visitor training program for children with physical, mental, or emotional disabilities.

Trainees

An H-3 “trainee” must be invited by an individual or organization for the purpose of receiving training, other than graduate or medical education training, in any field including but not limited to:

• Commerce,
• Communications,
• Finance,
• Government,
• Transportation,
• Agriculture, or
• Other professions.

This classification is not intended for U.S. employment. It is designed to provide a noncitizen/foreign national with job-related training for work that will ultimately be performed outside the U.S.

In order to obtain H-3 classification, a U.S. employer or organization must provide:

• A detailed description of the structured training program. The description should indicate the number of hours per week the trainee will be in classroom training and the number of hours per week that the trainee will be involved in on-the-job training,
• A summary of the trainee’s prior training and experience,
• An explanation of why the trainee needs the training,
• A statement explaining why the training is unavailable in the trainee’s home country,
• A statement explaining how the training will benefit the trainee in pursuing a career outside the U.S., and
• A statement explaining who will pay for the training without the petitioner permanently employing the trainee.

Application process

In order to obtain H-3 classification, the U.S. employer or organization must file a Form I-129, Petition for Nonimmigrant Worker. The petition must be filed with the required information.

Length of stay

If the petition is approved, the trainee may be allowed to remain in the U.S. for up to two years. If the trainee petition is approved for a special education exchange visitor, the trainee may remain in the U.S. for up to 18 months.

Family of H-3 visa holders

Trainees’ spouses and children who are under the age of 21 may accompany them to the U.S. However, the family members will not be permitted to work in the U.S.

Nonimmigrant visas: I

• I visa are for individuals who represent a foreign media outlet.
• Individuals with I visas will be allowed to stay in the U.S. for the duration of status for their employer, or for as long as the Form I-94 indicates.
• The individual’s spouse and children under 21 may accompany the I visa holder while staying in the U.S.

I: Representatives of foreign media

Individuals may be eligible for the representatives of foreign media nonimmigrant visa (I) if they:

• Represent a foreign information media outlet (press, radio, film, or other foreign information media);
• Are coming to the U.S. to engage solely in this profession; and
• Have a home office in a foreign country.

Occupations under this category include reporters, film crews, editors, and similar occupations.

Individuals may apply for an I visa at an American Embassy or consulate with jurisdiction over their place of permanent residence.

Length of stay

At the port of entry, a Customs and Border Protection (CBP) officer will determine whether an individual can be admitted to the U.S. The officer will review and stamp the individual’s Form I-94, Arrival/Departure Record, which will contain the authorized period of stay.

Admission as an I nonimmigrant is generally authorized for the duration of status (D/S on Form I-94), and no application for extension of stay is required to be filed as long as the media representative continues working for the same employer in the same information medium.

If Form I-94 indicates a specific end date for the authorized period of stay, and the I-visa holder wishes to stay beyond that specified end date, a Form I-539, Application to Extend/Change Nonimmigrant Status, must be filed in accordance with the form filing instructions. Any required evidence and applicable fees must also be submitted.

Family of I visa holders

Any spouse and children under the age of 21 may accompany or follow to join an I-nonimmigrant.

Nonimmigrant visas: L-1A

• L-1A visa holders may come to the U.S. as an executive or manager to establish or maintain a company office in the U.S. for a foreign company.
• The foreign company must be willing to do business as an employer in the U.S. and in at least one other country.
• Employees with an L-1A visa may stay in the country for 1 to 7 years, depending on the nature of their entry into the U.S.

L-1A: Intracompany transferee executive or manager

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the U.S. with the purpose of establishing one. The employer must file a Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.

Employer responsibilities

To qualify for L-1 classification in this category, the employer must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be — or will be — doing business as an employer in the U.S. and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the U.S. as an L-1A. While the business must be viable, there is no requirement that it be engaged in international trade.

Length of stay

Qualified employees entering the U.S. to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

Family of L-1 workers

The transferring employee may be accompanied or followed by a spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.

Spouses of L-1 workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization. If approved, there is no specific restriction as to where the L-2 spouse may work.

Nonimmigrant visas: L-1B

• L-1B visas allow intracompany transfers for workers with specialized knowledge to work in offices in the U.S.
• Employers may qualify for this category through qualifying relationships with a foreign company and by doing business with both a U.S. employer and at least one other country for the duration of the L-1B worker’s stay in the U.S.
• Lengths of stay for L-1B visa holders vary from 1 to 5 years, depending on the nature of this status.

L-1B: Intracompany transferee specialized knowledge

The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the U.S. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized-knowledge employee to the U.S. to help establish one. The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.

Employer responsibilities

To qualify for L-1 classification in this category, the employer must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be — or will be — doing business as an employer in the U.S. and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the U.S. as an L-1B. While the business must be viable, there is no requirement that it be engaged in international trade.

Length of stay

Qualified employees entering the U.S. to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

Family of L-1 workers

The transferring employee may be accompanied or followed by a spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.

Spouses of L-1 workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization. If approved, there is no specific restriction as to where the L-2 spouse may work.

Nonimmigrant visas: O-1 and O-2

• O-1A and O-1B visas are given to individuals with extraordinary, demonstrated, and nationally/internationally recognizable achievements.
• O-2 visas are for individuals accompanying the O-1 worker because their skills are necessary and essential for the O-1 to perform/complete their job.
• The maximum period of stay for O-1 and O-2 visa holders is three years.

O-1: Individuals with extraordinary ability or achievement

The O-1 nonimmigrant visa is for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O nonimmigrant classification commonly includes:

• O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures, or television industry).
• O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.
• O-2: individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker must have critical skills and experience with the O-1 that are essential to the successful performance of the O-1 and that cannot be readily performed by a U.S. worker.
• O-3: individuals who are the spouse or children of O-1’s and O-2’s.

Employer responsibilities

The petitioner should file Form I-129, Petition for Nonimmigrant Worker, with the United States Citizenship and Immigration Services (USCIS) office listed on the form instructions. The petition may not be filed more than one year before the actual need for the noncitizen/foreign national’s services. To avoid delays, the Form I-129 should be filed at least 45 days before the date of employment.

The petitioner must submit Form I-129, Petition for Nonimmigrant Worker, and documentary evidence.

O-2: Individuals who will accompany an O-1 visa holder

The petitioner must file a petition with USCIS for the O-2 visa. The petitioner should file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office listed on the form instructions. An O-2 noncitizen/foreign national must be petitioned for in conjunction with the services of the O-1 artistic or athletic noncitizen. The petitioner may not file the Form I-129 more than one year before the O nonimmigrant will begin employment. To avoid delays, Form I-129 should be filed at least 45 days before the date of employment.

The petitioner must submit Form I-129, Petition for Nonimmigrant Worker, and documentary evidence.

Length of stay

The USCIS will determine the time that is necessary for an O nonimmigrant to accomplish the initial event or activity in increments of up to one year. The maximum period of stay for this visa type is three years.

Family of O-1 and O-2 visa holders

Any accompanying or following-to-join spouse and children under the age of 21 may be eligible to apply for an O-3 nonimmigrant visa, subject to the same period of admission and limitations as the O-1/O-2 nonimmigrant. They may not work in the U.S. under this classification, but they may engage in full- or part-time study on an O-3 visa.

Changing employers

If an O-1 nonimmigrant in the U.S. wants to change employers, the new employer must file a Form I-129 with the USCIS office listed on the form instructions.

Nonimmigrant visas: P-1A

• P-1A visa are for athletes who are internationally recognized and coming to the U.S. for an individual event, competition, or performance.
• Athletes with P-1A visa may stay in the U.S. for the duration of the event, competition, or performance with a total limit of 10 years after extensions.
• P-1A visa holders may change employers as long as the new employer files a new Form I-129 to request permission for the change.

P-1A: Internationally recognized athlete

The P-1 classification applies to individuals who are coming to the U.S. temporarily to perform in a specific athletic competition as an athlete (individually or as part of a group or team) at an internationally recognized level of performance.

To qualify, the individual must come to the U.S. as an internationally recognized high-level performer coming to participate in an individual event, competition, or performance. This recognition of performance must be evidenced by a degree of skill substantially above that ordinarily encountered so that the achievement is renowned, leading, or well known in more than one country.

For an individual to come to the U.S. under the P-1A visa classification, the U.S. employer must file a Form I-129, Petition for Non-Immigrant Worker, accompanied the supporting documentation.

Length of stay

For an individual athlete, the initial period of stay will typically be the time needed to complete the event, competition, or performance, not to exceed five years. Extensions may be granted in increments of up to five years in order to continue or complete the event. Total stay is limited to 10 years.

Change of employer

P-1A visa holders may change employers, but only after the new employer has filed a new Form I-129 with the United States Citizenship and Immigration Services (USCIS) requesting permission to employ and extend the individual’s stay. The P-1A visa holder may not commence employment with the new employer until the Form I-129 has been approved.

Family of P-1A visa holders

The spouse and unmarried children (under the age of 21) of P-1A visa holders may obtain P-4 status. Dependents may not engage in employment, but may attend school or college.

Nonimmigrant visas: P-2 and P-3

• P-2 visa are for performers in an exchange program designed between a foreign and a U.S. organization.
• P-3 visas are for artists or entertainers coming to the U.S. to teach, coach, or perform in a culturally unique program.
• Both P-2 and P-3 holders may stay in the U.S. until the event, competition, or performance has ended (within one year), or may request extensions in one-year increments.

P-2: Performer under a reciprocal exchange program

The P-2 classification applies to individuals who are coming to the U.S. temporarily to perform as artists or entertainers (individually or as part of a group) and who will perform under a reciprocal exchange program between an organization in the U.S. and an organization in another country.

Employer responsibility

To qualify for a P-2 visa, the U.S. employer or a sponsoring labor organization in the U.S. must file Form I-129, Petition for a Non-Immigrant Worker.

Length of stay

The initial period of stay on a P-2 visa is typically the time needed to complete the event, competition, or performance, and is not to exceed one year. Extensions may be granted in increments of up to one year in order to continue or complete the event, competition, or performance. Form I-129 is used to apply for a change of status, extension of stay, or change of employment.

Change of employer

Individuals on P-2 visas may change employers, but only after the new employer has filed a new Form I-129 with the United States Citizenship and Immigration Services (USCIS) requesting permission to employ the person and extend the stay. A P-2 visa holder may not commence employment with the new employer until the Form I-129 has been approved.

Family of P-2 visa holders

The spouse and unmarried children (under the age of 21) of P-2 visa holders may obtain P-4 status. Dependents may not engage in employment, but may attend school or college.

P-3: Artist or entertainer coming to be part of a culturally unique program

The P-3 classification applies to individuals who are coming to the U.S. temporarily to perform, teach, or coach as artists or entertainers (individually or as part of a group) under a program that is culturally unique.

To be eligible for a P-3 visa, individuals must be coming to the U.S. either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, the person must be coming to the U.S. to participate in a cultural event or events which will further the understanding or development of the art form. The program may be of a commercial or noncommercial nature.

Employer responsibilities

The U.S. employer or sponsoring organization must submit Form I-129, Petition for a Non-Immigrant Worker.

Length of stay

The initial period of stay on a P-3 visa is typically the time needed to complete the event, activity, or performance, not to exceed one year. Extensions may be granted in increments of up to one year to allow the individual to continue or complete the event, activity, or performance. The Form I-129 is used to apply for a change of status, extension of stay or change of employment.

Change of employer

Individuals on P-3 visas may change employers, but only after the new employer has filed a new Form I-129 with the USCIS requesting permission to employ the individual and extend the stay. The P-2 visa holder may not commence employment with the new employer until the Form I-129 has been approved.

Family of P-3 visa holders

The spouse and unmarried children (under the age of 21) of P-3 visa holders may obtain P-4 status. Dependents may not engage in employment, but may attend school or college.

Nonimmigrant visas: Q

• Q visas are given to individuals 18 and older seeking to share their native culture by participating in a cultural exchange program that provides practical training and employment.
• Prospective employers must submit evidence to prove they have established a valid international cultural exchange program that will help enrich the culture of the U.S.

Q: Cultural exchange

Individuals may be eligible for a Q-1 nonimmigrant visa if they are seeking to participate in an international cultural exchange program. The Q nonimmigrant exchange program is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of an individual’s home country with the U.S.

Only employers who administer cultural exchange programs are allowed to petition for Q nonimmigrants. The purpose of the Q nonimmigrant visa is to facilitate the sharing of international cultures. It is an employment-oriented program, but an integral part of the visa holder’s duties must have a cultural element. To be eligible, individuals must be at least 18 years old and be able to communicate effectively about the cultural attributes of their country.

Employer responsibilities

The sponsoring organization must file Form I-129, Petition for Nonimmigrant Worker, with the United States Citizenship and Immigration Services (USCIS) office specified in the form instructions. In addition, the employer must submit evidence that the employer maintains an established international cultural exchange program. This may be demonstrated by submitting copies of catalogs, brochures, or other types of material which illustrate that the cultural component of the program is designed to give an overview of the attitude, customs, history, heritage, philosophy, tradition, and/or other cultural attributes of the participant’s home country.

The employer may also submit evidence which illustrates that the program activities take place in a public setting where the sharing of culture can be achieved through direct interaction with the American public or a segment thereof.

Length of stay

Individuals who are granted Q visa status are typically granted an initial period of stay of up to 15 months.

After a Q cultural exchange program has been completed, the visa holder has 30 days to depart the U.S. The individual is required to spend one year outside the U.S. before applying for participation in the Q cultural exchange program again.

Family of Q visa holders

The Q nonimmigrant visa does not have a provision for any spouse or children to accompany or follow to join a Q-1 nonimmigrant. Any spouse or children must qualify for a visa classification for which they may be eligible.

Nonimmigrant visas: R-1

• R-1 visas are for foreign nationals coming to the U.S. to work for a non-profit religious organization as a minister or in another religious occupation.
• Prospective employers may petition for an employee’s R-1 visa by filing a Form I-129.
• R-1 visa holders may stay in the U.S. for up to five years with an extension.

R-1: Temporary religious workers

An R-1 visa holder is a foreign national who is coming to the U.S. temporarily as a minister or in a religious vocation or occupation to be employed, at least part time (average of at least 20 hours per week), by a non-profit religious organization in the U.S. (or an organization which is affiliated with the religious denomination in the U.S.).

To qualify, the foreign national must have been a member of a religious denomination that has a legitimate non-profit religious organization in the U.S. for at least two years immediately preceding the filing of the petition.

Employer responsibilities

Every petition for an R-1 worker must be filed by a prospective or existing U.S. employer through the filing of a Form I-129, Petition for Nonimmigrant Worker. An R-1 visa cannot be issued at a U.S. embassy or consulate abroad without prior approval of Form I-129 by the U.S. Citizenship and Immigration Services (USCIS). If the foreign national is visa-exempt (e.g., Canadian), then the original Form I-797, Notice of Action, reflecting an approval of a valid I-129 R petition at a port of entry must be presented. There are certain general requirements which must be satisfied by the petitioning organization as well as by the religious worker (the beneficiary of the petition).

The petitioning employer must submit Form I-129 including the R-1 Classification Supplement signed by the employer as well supporting documents.

Length of stay

R-1 status may be granted for an initial period of admission for up to 30 months. An extension of an R-1 status may be granted for up to an additional 30 months. The total stay in the U.S. in an R-1 status cannot exceed 60 months (five years).

Family of R-1 visa holders

The spouse and unmarried children (under the age of 21) of R-1 workers may be eligible for R-2 classification. Dependents of an R-1 worker may not accept employment while in the U.S. in R-2 status.

Nonimmigrant visas: TN NAFTA

• TN NAFTA visas are for Canadian and Mexican citizens who are temporarily engaged in professional business activities in the U.S.
• The TN category, a nonimmigrant classification, simply reflects this general exemption from the visa requirement.
• The initial period of stay for a TN visa is typically granted for up to three years.

TN NAFTA professionals

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the U.S., Canada, and Mexico. The TN (Trade National) nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. for engagement in professional business activities.

Professionals who are eligible to seek admission as TN nonimmigrants include accountants, engineers, lawyers, pharmacists, scientists, and teachers. TN nonimmigrant status may be granted if:

• The individual is a citizen of Canada or Mexico,
• The individual’s profession qualifies under the regulations,
• The position in the U.S. requires a NAFTA professional,
• The individual has a prearranged full-time or part-time job with a U.S. employer (but not self-employment), and
• The individual has the qualifications to practice in the profession in question.

Unlike Mexican citizens, Canadian citizens are generally eligible for admission as nonimmigrants without a visa. Canadian citizens are not required to apply for a TN visa at a U.S. consulate.

The TN category, a nonimmigrant classification, simply reflects this general exemption from the visa requirement. NAFTA governs which evidence is required to prove whether a Canadian or Mexican citizen is a professional in a qualifying profession.

Canadian citizens

Canadian citizens may establish eligibility for TN classification at the time they seek admission to the U.S. by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. The individual must provide the following documentation to the CBP officer:

• Proof of Canadian citizenship;
• Letter from the prospective employer detailing items such as the professional capacity in which the individual will work in the U.S., the purpose of employment, the length of stay, and the individual’s educational qualifications; and
• Credentials evaluation (if applicable), together with any applicable fees.

If the CBP officer finds the individual eligible for admission, then admittance as a TN nonimmigrant will be granted.

Mexican citizens

Mexican citizens are required to obtain a visa to enter the U.S. as a TN nonimmigrant and should apply for a TN visa directly at a U.S. embassy or consulate in Mexico.

Once approved for a TN visa, a Mexican citizen may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. If a CBP officer finds that the individual is eligible for admission, then admittance as a TN nonimmigrant will be granted.

Employer responsibilities

Though not required, a prospective TN employer may choose to file on behalf of a Canadian citizen who is outside the U.S. by submitting Form I-129, Petition for Nonimmigrant Worker, to the United States Citizenship and Immigration Services (USCIS).

If the USCIS approves Form I-129, the prospective worker may then apply to CBP for admission to the U.S. as a TN nonimmigrant by providing the following documentation to a CBP officer at certain CBP-designated U.S. ports of entry:

• Proof of Canadian citizenship, and
• Approval notice from USCIS for Form I-129.

Length of stay

The initial period of stay for a TN visa is typically granted for up to three years. Individuals who wish to remain in the U.S. beyond the initial period of stay without first departing from the U.S. must first seek an extension of stay. If the individual is in the U.S., the employer may file Form I-129 on the employee’s behalf.

Family of TN visa holders

The spouse and children (under the age of 21) of TN visa holders may be eligible for TN Dependent (TD) nonimmigrant status.

Nonimmigrant visas: Student visas and exchange visitors

• Students may apply for F-1 student visas for academic students or M-1 student visas for vocational students.
• F-1 and M-1 student visa holders may only work under certain conditions, and employment must relate to the student’s field of study.
• Individuals participating in an educational or cultural exchange program may qualify for a J-1 visa.

Student visas

Individuals who wish to pursue full-time academic or vocational studies in the U.S. may be eligible for one of two nonimmigrant student categories: The “F” category is for academic students and the “M” category is for vocational students.

• F-1 student visa: The F-1 visa (academic student) allows an individual to enter the U.S. as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. The individual must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate, and the school must be authorized by the U.S. government to accept international students.
• M-1 student visa: The M-1 visa (vocational student) category includes students in vocational or other nonacademic programs, other than language training.

Employment

F-1 students may not work off-campus during the first academic year, but may accept on-campus employment depending on certain conditions and restrictions. F-1 students may engage in three types of off-campus employment after they have been studying for one academic year. These three types of employment are:

• Curricular practical training (CPT);
• Optional practical training (OPT) (pre-completion or post-completion); and
• Science, technology, engineering, and mathematics (STEM) optional practical training extension (OPT).

M-1 students may engage in practical training only after they have completed their studies.

For both F-1 and M-1 students, any off-campus employment must be related to their area of study and must be authorized prior to starting any work by the designated school official (the person authorized to maintain the Student and Exchange Visitor Information System) and the U.S. Citizenship and Immigration Services (USCIS).

Exchange visitors

Individuals who wish to participate in an exchange program may be eligible for a “J” category visa for exchange visitors. The J-visa program is for educational and cultural exchange programs. The J-1 classification is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.

Employment

Some J-1 nonimmigrants enter the U.S. specifically to work (as a researcher, nanny, etc.), while others do not. Employment is authorized for J-1 nonimmigrants only under the specific terms of the exchange program.

Family of J-1 visa holders

The spouse and unmarried children (under 21 years of age) of J-1 visa holders are entitled to J-2 classification. Spouses and children are entitled to work authorization; however, their income may not be used to support the J-1 visa holder. To apply for work authorization as a J-2 nonimmigrant, the spouse or child would file Form I-765, Application for Employment Authorization.

Immigrant visas

• Immigrant visas allow individuals to stay in the U.S. on a permanent basis.
• Immigrant visas may be applied for through family, job offers, refugee/asylum status, and more.
• To qualify, individuals must meet certain criteria, including the approval of a qualifying immigrant petition.

Unlike nonimmigrant visas, immigrant visas allow individuals to stay in the U.S. on a permanent basis. An individual may be eligible to apply for permanent residence in the U.S. through family, a job offer or employment, refugee or asylum status, or a number of other special provisions. In general, to meet the requirements for permanent residence in the U.S., an individual must:

• Be eligible for one of the immigrant categories established in the Immigration and Nationality Act (INA),
• Have a qualifying immigrant petition filed and approved,
• Have an immigrant visa immediately available, and
• Be admissible to the U.S.

Family-based immigration

Immediate relatives of U.S. citizens do not have to wait for a visa to become available. There is no limit to the number of visas that can be utilized in this category in a particular year.

Immigration based on refugee or asylee status

An individual who was admitted to the U.S. as a refugee, or the qualifying spouse or child of a refugee, is required to apply for permanent residence (a Green Card) one year after entry into the U.S. under this status.

If granted asylum in the U.S., or if the individual is a qualifying spouse or child of an asylee, the person may apply for permanent residence one year after asylum status is granted.

Employment-based immigration

Individuals who have the right combination of skills, education, and/or work experience may be able to live permanently in the U.S.

Some immigrant visa categories require that an individual already have a job offer from a U.S. employer. This employer will be considered the employee’s sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to United States Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). The DOL labor certification verifies the following:

• There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage; and
• Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Permanent worker visa preference categories

Labor certification is also referred to as Program Electronic Review Management (PERM), which is the way employers receive an approved labor certification from the DOL.

Special situations when filling out Section 1 of Form I-9

• The employee may encounter special situations, such as additional last names and suffixes, non-U.S. addresses, missing SSNs, or the need for a translator.
• It is only acceptable to have an address outside of the U.S. if that address is in Canada or Mexico.

Other Last Names Used (if any): In the “Other Last Names Used (if any)” field, the employee should provide all other last names used (e.g., maiden name).

Employees should enter their full legal name into Section 1 of the Form I-9. If the employee presents documents for Section 2 that contain a suffix (e.g., Jr., Sr.), yet the individual did not include the suffix in Section 1, the documents may still be accepted provided that the question is resolved of whether the documents reasonably relate to the employee.

If the employee has made a mistake in Section 1 by not including the suffix, the employer should ask the employee to correct Section 1 and sign and date the correction.

If, however, the employer determines that any of the documents with (or without) a suffix do not reasonably appear to be genuine and to relate to the employee, the employer may ask the employee to provide other documents from the Lists of Acceptable Documents on Form I-9.

Generally, generational (e.g., Jr., Sr., or any other) ambiguities in name are going to be resolved by the Social Security number (SSN) or tax identification number (TIN).

An address outside of the United States: This address can be acceptable, but only in the case of employees who cross the border from Canada and Mexico to get to work in the United States. These employees should enter their city and province (Canada) or city and state (Mexico) in the “City or Town” field. These employees should enter their country abbreviations in the “State” field and should enter their 5- or 6-digit postal code in the “ZIP code” field.

Waiting for Social Security number: For an employee of an E-Verify employer who has applied for a Social Security number but not yet received it, the individual should leave this field blank (if completing the form electronically). After the form has been printed, the employee should write: “Applied for - In Process” in this space before signing and dating Section 1. If the employee otherwise satisfies the Form I-9 requirements, then the employee may work while awaiting the Social Security number. As soon as the number is available, the employer can create a case in E-Verify using the employee’s Social Security number .

Spanish version: If the reason that the employee cannot complete Section 1 on their own is because the employee’s dominant language is Spanish, and not English, the employer may want to provide the employee with the Spanish version of the Form I-9 for translation purposes. Note that this version of the form is only valid for completion by employees in Puerto Rico. A Spanish-speaking employee in any other location may use the Spanish version of the form for translation purposes only.

Special situations with immigration status

• Individuals who have Temporary Protected Status may have their employment authorization automatically extended.
• A noncitizen authorized to work may need to record the expiration date for authorization .
• New employees presenting an employment authorization document (EAD) that has been automatically extended must calculate and enter the date 180 days after the card expires.

Noncitizen authorized to work: Employees who mark that they are “a noncitzen authorized to work” are to record the date that employment authorization expires, but not all individuals who check this box will have such an expiration date. This might apply to refugees, asylees, and certain citizens of the Federated States of Micronesia or the Republic of the Marshall Islands.

• Individuals who have Temporary Protected Status may have their employment authorization automatically extended. These employees should enter the expiration date of the automatic extension in the expiration date space.

New employees presenting an employment authorization document (EAD) that has been automatically extended must complete Section 1 as follows:

• Select “A noncitizen authorized to work until;” and
• Enter the date that is 180 days from the “Card Expires” date on their EAD as the expiration date.

Employers should enter automatic extensions of documents in the “Additional Information” field in Section 2, instead of crossing out and initialing the date listed in the “Noncitizen authorized to work until” field of Section 1.

Refugees and asylees who present an EAD (Form I-766) have employment authorization that does not expire.

For F-1 students in a cap-gap* situation, in Section 1, a new employee should:

• Select “A noncitizen authorized to work until;” and
• Enter Sept. 30 and the year the H-1B change of status petition was filed as the expiration date.

To Update Section 2 for a current employee eligible for a cap-gap extension once a Form I-797C is received, enter CAP-GAP and September 30 with the year the petition was filed for in the Additional Information field. For example, CAP-GAP 09/30/yyyy.

* A cap-gap is the period between the end of a nonimmigrant student’s F-1 status and the beginning of their H-1B status.

List A, List B, and List C documents

• If the employee can provide a document from List A, then they do not need to present any other documents.
• An employee may present one document from List B and one document from List C

List A Documents

List A documents prove both an individual’s identity and work authorization simultaneously, so an employee only needs to produce one document from List A to satisfy the I-9 requirements.

The List A documents are:

• A U.S. Passport or U.S. Passport Card;
• A Permanent Resident Card (Green Card) or Alien Registration Receipt Card (Form I-551);
• An Employment Authorization Document that contains a photograph (Form I-766);
• A Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A;
• A foreign passport containing a Form I-551 stamp or Form I-551 printed notation; or
• A foreign passport with Form I-94 or Form I-94A that has the same name as the passport. The form must have an endorsement of the individual’s status or parole that has not expired. The proposed employment cannot be in conflict with restrictions identified on the form. (This is only an acceptable List A document for an individual temporarily authorized to work for a specific employer because of the individual’s status or parole.)

List B Documents

List B documents establish identity only and are valid for the Form I-9 when presented with a List C document (which establishes work authorization only). Both must be presented in order to validate the employee.

Employers may notice some documents on both Lists B and C. If an employee presents one of these documents (like a Native American Tribal Document), it can be used to complete both columns B and C. The employee does not need to present any other documents if the document appears on both lists. The reason these documents are not on List A is that List A is established by Congress with specifically named documents.

If employers use E-Verify, and an employee presents a combination of List B and List C documents, then the List B document must contain a photograph.

The List B documents are:

• A driver’s license,
• An ID card issued by federal, state, or local government agencies,
• A school ID card with a photograph,
• A voter’s registration card,
• A U.S. military card or draft record,
• A military dependent’s ID card,
• A U.S. Coast Guard Merchant Mariner Card,
• A Native American Tribal Document, or
• A driver’s license issued by a Canadian government authority.

For individuals under age 18:

• A school record or report card;
• A clinic, doctor, or hospital record; or
• A day-care or nursery school record.

List C Documents

Documents found on List C establish employment eligibility only and are valid for the Form I-9 when presented with a List B document (which establishes identity only).

The List C documents are:

• A U.S. Social Security number card;
• A birth certificate with an official seal;
• A certification of birth abroad issued by the Department of State (Form FS-240, Form FS-545, Form DS-1350);
• A Native American Tribal Document;
• A Form I-197, U.S. Citizen ID Card;
• A Form I-179, Identification Card for Use of Resident Citizen in the U.S.; or
• An employment authorization document issued by the Department of Homeland Security (DHS).

Acceptable receipts

An employee may present a receipt in place of a document proving identity, work authorization, or both. The receipt is acceptable for a short period of time, allowing the employer to complete Section 2 of the Form I-9 or Supplement B, for reverification and rehire.

The Lists of Acceptable Documents page on the Form I-9 includes a link to additional details about some acceptable receipts. In addition, the form includes a link to information about automatic extensions of employment authorization documentation.

Unacceptable Social Security cards and future expiration dates

• If an employer is presented with an unacceptable Social Security card, the employee must provide another document to establish authorization for work.
• The employer must be aware of documents with expiration dates that need to be reverified when necessary.

Unacceptable Social Security cards

Only an unrestricted Social Security (SS) card is acceptable. SS cards that are NOT acceptable List C documents may include any one of the following annotations, as these indicate that the card is restricted:

• NOT VALID FOR EMPLOYMENT,
• VALID FOR WORK ONLY WITH INS AUTHORIZATION, or
• VALID FOR WORK ONLY WITH DHS AUTHORIZATION.

When presented with a card with these annotations, an employer should ask the employee to provide another document to establish employment authorization, since such restricted SS cards are not acceptable documents for Form I-9. If the employee wants to use an SS card as a document, the employee should go to the local Social Security Administration (SSA) office with proof of lawful employment status to be issued an SS card without employment restrictions.

Future expiration dates

Future expiration dates often appear on individuals’ employment authorization documents.

Such documents may include (among others) lawful permanent residents, asylees, and refugees. It’s important to remember that the United States Citizenship and Immigration Services (USCIS) includes expiration dates even on documents that are issued to individuals with permanent employment authorization. As such, the existence of a future expiration date:

• Does not prevent continuous employment authorization,
• Does not mean that subsequent employment authorization will not be granted, and
• Should not be considered in determining whether an individual is qualified for a particular position.

Considering a future employment authorization expiration date in determining whether a noncitizen/foreign national is qualified for a particular job may constitute employment discrimination. However,an employer may need to reverify the employee’s authorization to work when certain List A or List C documents expire. For example, the Employment Authorization Document (Form I-766) must be reverified on or before the expiration date.

Reverification situations: Remote employees, LPRs, refugees, and asylees

• Documents for remote employees may be reverified in person by a company representative.
• E-Verify employers may use the alternative review procedure authorized by the DHS.
• Lawful permanent residents, refugees, and asylees may present expired documents that are accompanied by an extension in combination with other forms.

Remote employees:

When a remote employee’s documentation needs reverification, the employer may use a trusted representative who can examine the employee’s documentation in person.

An employer participating in E-Verify may choose to use the alternative procedure for remote review of documents.

Lawful permanent residents

Lawful permanent residents (LPRs) and conditional residents may be issued temporary I-551 documents. These documents are acceptable for Form I-9 as follows:

• If an employee presents an expired Permanent Resident Card (Green Card) along with a Form I-797, Notice of Action, that indicates that the card is valid for an additional year, this combination is acceptable List C evidence of employment authorization for one year. At the end of the one-year extension period, the employer must reverify the employee’s documentation using Supplement B. If an employee presents a foreign passport with either a temporary I-551 stamp or I-551 printed notation on a machine-readable immigrant visa (MRIV), the employer must reverify when the stamp or MRIV expires, or one year after the issuance date if the stamp or MRIV does not contain an expiration date.
• If an employee presents the arrival portion of Form I-94/I-94A containing an unexpired temporary I-551 stamp and a photograph of the individual, this combination of documents is an acceptable List A receipt for the Permanent Resident Card. The employee must present the Permanent Resident Card to the employer no later than when the stamp expires, or one year after the issuance date of the Form I-94 if the stamp does not contain an expiration date.

Refugees: Upon admission to the United States, a refugee will receive Form I-94/I-94A with an unexpired refugee admission stamp. If an employee presents this document to complete Form I-9, the employer must accept it as a receipt establishing both employment authorization and identity for 90 days. In the meantime, the United States Citizenship and Immigration Services (USCIS) will be processing an Employment Authorization Document (Form I-766) for the refugee.

At the end of the 90-day receipt period, the refugee must present either an Employment Authorization Document (EAD) (Form I-766) or a document from List B, such as a state-issued driver’s license, with a document from List C, such as an unrestricted Social Security (SS) card.

Refugees may also present an expired EAD in combination with an I-797C Notice of Action from USCIS indicating timely filing of the renewal application for an EAD (provided the I-797C indicates the same employment authorization category as the expired employment authorization document). This combination is considered an unexpired employment authorization and identity document (List A) and may be valid for a period of time after the “card expires” date on the face of the EAD.

Asylees: Asylees may also present an expired EAD (Form I-766) in combination with an I-797C Notice of Action from USCIS indicating timely filing of the renewal application for an EAD (provided the I-797C lists the same employment authorization category as the expired EAD). This combination is considered an unexpired employment authorization and identity document (List A) which is valid for a period of time after the “card expires” date on the face of the EAD.

Reverification situations: Students

• Students who have received STEM degrees may apply for an extension of Optional Practical Trailing (OPT).
• Students who have identity and employment authorization extended through cap-gap may establish these through an expired EAD and an endorsed Form I-120 for reverification.

Time periods for automatic extensions are periodically updated by the USCIS. The Lists of Acceptable Documents page on the Form I-9 includes a link to a web page with additional information about automatic extensions of employment authorization documentation.

F-1 OPT STEM extension: A student who received a bachelor’s degree, master’s degree, or doctoral degree in science, technology, engineering, or mathematics (STEM) may apply for a one-time 24-month extension of Optional Practical Training (OPT). To qualify, a student must have completed a degree included in the Department of Homeland Security (DHS) STEM-designated degree program list.

If the student presents an expired Employment Authorization Document (EAD) and an endorsed Form I-20 recommending a STEM extension, the employer should enter the following information under List A in Section 2:

• EAD document title,
• EAD document number,
• Date the EAD expired in the expiration date space, and
• the appropriate extension time period in the Additional Information field.

The expired EAD with an endorsed Form I-20 is acceptable until the United States Citizenship and Immigration Services (USCIS) makes a decision on the student’s application.

Acceptable Forms I-20 for STEM OPT students must have all Employment Authorization fields completed. These fields include:

• Employment status,
• Employment type,
• Start and end date of employment, and
• The employer’s name and location.

Cap-gap: The term “cap-gap” refers to the period between the time a nonimmigrant’s F-1 student status would ordinarily end and when their H-1B status would begin. F-1 Students who seek to change to H-1B status may be eligible for a cap-gap extension of status and employment authorization through September 30 of the calendar year for which the H-1B petition is being filed, but only if the H-1B status will begin on October 1. When an employer has an F-1 nonimmigrant student in OPT and when the employer has filed an H-1B petition, the employee may be able to continue working beyond the expiration date on the given OPT Employment Authorization Document (Form I-766) while the petition is pending.

The following documents establish identity and employment authorization for Form I-9 purposes for students who have had their status and employment authorization extended through cap-gap:

• Expired EAD; and,
• Form I-20 endorsed by the student’s Designated School Official (DSO) recommending the cap-gap extension.

These documents are acceptable through September 30 of the year in which the employer filed the H-1B petition unless the H-1B petition is rejected, not selected, denied, revoked, or withdrawn before October 1.

To verify employment authorization in Section 2 of the Form I-9, or to reverify using Supplement B, during the cap-gap period, the employer should record:

• EAD document title,
• EAD document number,
• Date the EAD expired in the expiration date space, and
• “CAP-GAP” in the Additional Information field.

Reverification situations: H-1B specialty occupations and H-2A temporary agricultural workers

• An H-1B worker may continue working for an employer while waiting for an extension-of-stay petition (Form 1-129) to be processed.
• An employer may extend a worker’s H-2A status for periods of two weeks to one year by timely filing a new Form I-129 petition on behalf of the worker.
• The Form I-9 should be updated by both the employee and the employer to reflect changes in the appropriate area.

H-1B specialty occupations: For H-1B workers to continue working for an employer beyond the expiration of their current H-1B status, indicated by the expiration date on the Form I-94/I-94A, the employer must request an extension of stay before the H-1B status expires. Upon submitting a timely filed Form I-129 petition seeking an extension of the employee’s status to United States Citizenship and Immigration Services (USCIS), the employee is authorized to continue to work while the petition is being processed.

The employer should record the extension period and the date the Form I-129 was submitted to the USCIS in the “Additional Information” box in Section 2. Also, the employee may update Section 1 by crossing out the expiration date of their employment authorization noted in the attestation. The employee may write in the new date that the automatic extension of employment authorization ends and initial and date this update in the margin of Section 1. The employer must reverify the employee’s employment authorization using Supplement B once it receives a decision on the H-1B petition, or by the end of the extension period.

H-2A temporary agricultural worker: The H-2A program allows U.S. employers to bring foreign workers to the United States to fill temporary or seasonal agricultural jobs, usually lasting no longer than one year, for which U.S. workers are not available. An employer may extend a worker’s H-2A status in increments of no longer than one year by timely filing a new Form I-129 petition with USCIS on behalf of the worker.

The employer should record the extension period and date that the Form I-129 was submitted to the USCIS in the “Additional Information” box in Section 2 of the Form I-9.

The USCIS may extend a single H-2A petition for up to two weeks without an additional approved labor certification under certain circumstances. In such a case, the employer should write “two-week extension” and record the date the Form I-129 was submitted to the USCIS in the “Additional Information” box in Section 2 of the Form I-9.

The employer must reverify the employee’s employment authorization using Supplement B once it receives a decision on the H-2A petition, or by the end the extension period.

Reverification situations: Other nonimmigrant categories and automatic extensions

• Nonimmigrant categories other than H-1B and H-2A may work while waiting for an extension of stay (Form I-129 or I-129CW) filed by their employer.
• Employees with certain visas may receive automatic extensions of Employment Authorization Documents (Form I-766).
• Pertinent information relating to the extension is entered on Supplement B.

Other nonimmigrant categories: Other nonimmigrants also may receive extensions of stay if their employers file Form I-129, Petition for a Nonimmigrant Worker (or Form I-129CW, Petition for a Commonwealth of the Northern Mariana Islands [CNMI]-Only Nonimmigrant Transitional Worker for CW-nonimmigrants) with United States Citizenship and Immigration Services (USCIS) on their behalf before their status expires. These employees are authorized to continue working while their petitions are being processed. On these employees’ Form I-9, the employer should record the extension period and the date Form I-129 was submitted to USCIS in the Additional Information box in Section 2.

After submitting Form I-129 or Form I-129CW to USCIS, the employer will receive a notice from USCIS acknowledging that a petition is pending; this should be kept with the employee’s Form I-9. The employer should retain the I-797C, Notice of Action.

If USCIS approves the application/petition for an extension of stay, the employer will receive a Form I-797A, Notice of Action which includes an expiration date and an attached Form I-94A, Arrival/Departure Record. The employer should enter the document title, number, and expiration date listed on the notice on Supplement B and then give the employee the Form I-94A, which is evidence of their employment-authorized nonimmigrant status.

Automatic extensions of stay for EB-1, EB-2, and EB-3 workers: Employees with certain visas receive an extension of Employment Authorization Documents (Form I-766).

For current employees whose employment authorization was automatically extended:

• Cross out the “employment authorized until” date in Section 1;
• Record the new date and initial and date the change;
• In Section 2, draw a line through the old expiration date and write in the new expiration date); and
• Write “EAD EXT” in the “Additional Information” field of Section 2 and initial and date the update.

The employer should complete Supplement B when the extension has ended or when the employee presents a new document to show continued employment authorization, whichever is sooner.