I-9s

Scope

Every new employee must complete a Form I-9 within three days of beginning work for an employer.

Regulatory citations

• None

Key definitions

• Form I-9: Short for Immigration and Nationality Act’s (INA) Form I-9, known as the “Employment Eligibility Verification” form.

Summary of requirements

Every new employee must complete a Form I-9. Even though citizens and nationals of the U.S. are automatically eligible for employment, they still must present proof of employment eligibility and identity. Citizens of the U.S. include persons born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. Nationals of the U.S. include persons born in American Samoa, including Swains Island.

Who must complete an I-9? All new employees must complete a Form I-9 within three days of beginning work for an employer, and an employer must have a Form I-9 in its files for all current employees with the exception of those hired before November 7, 1986, who have been continuously employed since then.

Forms I-9 also need not be completed for individuals:

• Providing domestic services in a private household that are sporadic, irregular, or intermittent;
• Providing services for the employer as an independent contractor; or
• Providing services for the employer under a contract (for example, through a temporary employment agency), subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor providing the employees is the employer for I-9 purposes.)

How to comply. To comply with Form I-9 requirements, employers must:

• Have the employee sign the I-9.
• Examine the form to make sure it is properly completed and legible.
• Keep the I-9 form on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later.
• Verify, on the I-9 form, that the employer has seen documents establishing identity and work authorization for all new employees, U.S. citizens and non-citizens alike.
• Allow employees to choose which documents to present from the Lists of Acceptable Documents.
• Reasonably assess the validity of documents presented.

By complying with the verification requirements of the I-9, the employer demonstrates a “good faith” effort in not knowingly hiring an illegal alien. Employers may NOT ask for more documents than those required by the Form I-9 and may not require an employee to present a specific document for I-9 purposes.

Employers may not continue to employ an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three business days of the date the employee begins working for pay.

If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.

I-9 retention. I-9 forms are not filed with the U.S. government. Instead, employers must maintain I-9 records in their files for 3 years after the date of hire or 1 year after the date the employee’s employment is terminated, whichever is later. This means that employers should have I-9s on file for all current employees, as well as for those terminated employees whose records remain within the retention period.

Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location. Whatever the storage choice, the employer must be able to gather all I-9 records within 3 days of a notice of inspection from the federal government.

It’s a good practice to store employees’ Forms I-9 separately from personnel files. While this is not required by law, it’s typically a practical decision. Particularly if a large number of employees are involved, it may be difficult to extract records from individual personnel files in time to meet a 3-day deadline for production of I-9 records for official inspection. Additionally, keeping employees’ Forms I-9 separate from personnel files can help prevent claims that an employee was discriminated against because of information housed on the Form I-9 (e.g., national origin or citizenship status).

Electronic storage of documents. The DHS allows electronic signing and storage of the filled I-9. The PDF version of the I-9 complies with the electronic form requirements of the rule. Employers may complete, sign, and store I-9 forms electronically as long as they comply with the requirements of 8 CFR 274a.2.

Genuineness of presented documents. Employers are not expected to be document experts. Rather, employers are expected to accept documents that appear to be genuine and relate to the person presenting them. If a document does not appear on its face to be genuine or to relate to the person presenting it, the employer must ask the employee for alternate documentation to satisfy I-9 requirements. Employees must present original, unexpired documents, with the exception of a certified copy of a birth certificate.

Employees not authorized to work. An employer may learn that an employee whose documentation appeared to be in order is not actually authorized to work. In such case, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable to provide satisfactory documentation, employment should be discontinued.

Discovering false documentation. It may also happen that an employer accepts a document that is not genuine – or is genuine but does not belong to the person who presented it. In such a case, the employer will generally not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it.

An employee who initially presented false documentation to gain employment may subsequently obtain proper work authorization and present documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9. Note that if an employee comes forward with new documentation under the Deferred Action for Childhood Arrivals (DACA), there may be specific steps the employer must follow to update the employee’s I-9 documentation.

Photocopying documents. Employers may not accept photocopied documents for completing Section 2 of the I-9. However, it is permissible for an employer to attach photocopies of documentation to the employee’s Form I-9. If an employer does this, however, the practice must be consistently applied to every employee, without regard to citizenship or national origin. If created, photocopies of employees’ documentation become part of the I-9 record, so they must be presented to government authorities that request to see I-9 forms.

Green cards. The terms Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence. The Permanent Resident Cards are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the alien cardholders must obtain new cards.

However, while the cards themselves expire and the cardholders must obtain new cards, the status provided by the cards is permanent. Therefore, these cards do not require reverification upon their expiration date.

Social Security numbers. The Social Security Administration (SSA) currently issues social security numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted social security cards that are indistinguishable from those issued to U.S. citizens.

The “Valid only with INS (or DHS) Authorization” social security cards are issued to aliens who present proof of temporary work authorization; these cards do not satisfy the Form I-9 requirements.

The SSA issues an SSA “Not Valid for Employment” card to aliens who have a valid non-work reason for needing a social security number (e.g., federal benefits, State public assistance benefits), but are not authorized to work in the U.S.

Future expiration dates. Future expiration dates may appear on the Form I-9 or on the employment authorization documents provided for I-9 compliance. The existence of a future expiration date:

• Does not preclude continuous employment authorization;
• Does not mean that subsequent employment authorization will not be granted; and
• Should not be considered in determining whether the worker is qualified for a particular position.

Consideration of a future employment authorization expiration date in determining whether an alien is qualified for a particular job may constitute employment discrimination.

Additionally, as noted, expiration dates may be included even on documents issued to aliens with permanent work authorization. In such cases, while the documents may expire, the status they provide does not.

Reverifying employment eligibility. When an employee’s temporary work authorization expires, you must reverify his or her employment eligibility. Use Section 3 of the Form I-9 or, if Section 3 has already been used for a previous reverification or update, use a new Form I-9 for reverification. When using a new Form I-9, write the employee’s name at the top of Section 2, complete Section 3, and retain the new form with the original.

The employee must present a document that shows either an extension of the employee’s initial employment authorization or new work authorization. As in initial employment authorization, the employer may not dictate which documentation an employee may present. If the employee cannot provide proof of current work authorization, that employee cannot continue to be employed. The employer must reverify on the Form I-9 not later than the date the employee’s work authorization expires.

Rehiring a former employee. When rehiring an employee who previously completed an I-9, reverify on the employee’s original Form I-9 (or on a new Form I-9 if Section 3 of the original has already been used) if:

• Rehiring the employee within 3 years of the initial date of hire; and
• The employee’s previous grant of work authorization has expired but he or she is currently eligible to work on a different basis or under a new grant of work authorization than when the original Form I-9 was completed.

To reverify:

• Record the employer date of rehire;
• Record the document title, number, and expiration date, if any, of any document(s) presented;
• Sign and date Section 3; and
• Write the employee’s name in Section 1, if reverifying on a new form.

If rehiring an employee who has previously completed a Form I-9, the employer may update the original Form I-9 or a new Form I-9 if:

• The employee is rehired within 3 years of the initial date of hire; and
• The employee is still eligible to work on the same basis as when the original Form I-9 was completed.

To update, the employer must:

• Record the date of rehire;
• Sign and date Section 3; and
• Write the employee’s name in Section 1, if reverifying on a new form.

Employers always have the option of completing Sections 1 and 2 of a new Form I-9 instead of completing Section 3, but should always retain earlier versions of the Form I-9 still in the employer’s possession.

Remote hires. In cases where a U.S. employer hires a new employee who doesn’t physically come to that employer’s offices to complete paperwork, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountants, attorneys, personnel officers, foremen, etc. An employer should choose an agent cautiously, however, since the employer will be held responsible for the actions of that agent.

Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer or a representative of the employer must review original documents in person. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.