Employment Authorization Verification for U.S. Employers: Form I-9 Basics

In last year’s Presidential election, the problem of illegal immigration was often center stage. President-elect Trump made it clear that he would be aggressive in rounding up and deporting those who are not lawfully in the United States. During the first Trump Administration, the effort to combat illegal immigration included an increased use of workplace inspections of employers’ hiring records and practices by federal authorities. There is every reason for employers to anticipate this same type of aggressive enforcement will be pursued following the second Trump inauguration.
A focus on workplace hiring practices should come as no surprise. According to the United States Citizenship and Immigration Services (“USCIS”), the opportunity for employment is often the magnet that attracts people from all around the world to the United States. At times those who immigrate here work unlawfully. Federal law has long imposed rules that prohibit employers from knowingly recruiting, hiring or retaining persons who are in the US illegally and/or who do not have the right to work.
For example, in 1986 Section 274A of the Immigration and Nationality Act was revised to make it unlawful for employer to knowingly hire an alien who is not authorized to work in the United States or to continue to employ that person knowing that they are or have become unauthorized with respect to such employment.[1] Federal law also mandates that employers use the proscribed Form I-9 to verify the identity of every employee hired and to ensure they are not an unauthorized alien.[2] In this regard, it is illegal for a business to hire an employee, even someone who is a citizen, without properly and timely completing and maintaining a Form 1-9 for each employee.
All employers, regardless of their size,[3] must use the most recent version of Form I-9 to verify the identity and employment authorization for all new employees, including US citizens, hired after November 6, 1986, and for rehires or reverifications.[4] Federal law requires the new employee to complete and sign the Form I-9 on the first day of employment and the employer must then complete the form within three (3) business days of that date after first verifying the person’s identity and work authorization which requires the inspection of certain specified documents.
There are limited exceptions to this I-9 requirement. A Form I-9s is not required for the following categories of workers:
- Employees working outside the United States;
- Individuals employed by a contractor providing contract services (like an employee leasing or temporary agency);
- Independent contractors [5]; or
- Causal domestic service employees working in a private home where work is sporadic, irregular, or intermittent.
Completed Form I-9s are not filed with a government agency but must be retained by the employer and made available upon request for inspection by the Immigration and Customs Enforcement (“ICE”) division of U.S. Department of Homeland Security. ICE has the authority to conduct an inspection of any employer’s hiring records at any time, it does not require a complaint. Employers will learn that an inspection will occur when it receives a notice of inspection. Employers are given at least three business days to respond.
When ICE inspects an employer’s hiring records, it is common for ICE to conduct on-site audits of Form I-9 documentation kept in an employer’s HR records. Failure to correctly fill out the Form I-9 or other compliance failures can lead to significant civil fines.[6] As result, it is imperative that every employer periodically review and assess their hiring records to ensure compliance and to verify that there is a Form I-9 for every employe currently working[7] and there are acceptable documents to verify who the employee is and that he/she is authorized to work in the United States, including United States citizens and non-citizen nationals.
Form I-9 Basics
Form I-9 is a four-page form which has four components. This article summarizes some important Form I-9 information that every employer must know.
A. Section 1 – Employee Information and Attestation
The first section of Form I-9 must be completed by the newly hired employee (or someone assisting him/her). This is where the new hire provides personal information, attests to their identity and their eligibility to work in United States, and provides documents to allow the employer to verify the attestations.
- The employee must complete Section 1 no later than the first day of hire, that is, the first day of work for pay (hire date).
- Employees are given a list of acceptable documents, which is set forth on Page 2 of the Form I-9 and given up to three business days to provide documents that will allow the employer to verify the information in Section 1.
- Acceptable documents for verification fall into three categories: A, B and C. New hires must provide one document from List A (which proves identity and authorization to work), or one document from List B (identity) and one from List C (work authorization).
- The employee is not required to provide their social security number on a Form I-9, unless that employer is enrolled in E-Verify.[8]
- The employee is not required to provide an email address on their Form I-9.
- Employers must ensure that an English version of Form I-9 is completed and maintained but may provide and use the Spanish version for translation purposes.
- If the employee uses a preparer and/or translator in completing the Form I-9, the person providing assistance must complete the Certification on Page 3.
B. Section 2 – Employer Review and Verification
Section 2 is area completed by the employer and signed under penalty of perjury by an authorized representative (usually someone in HR) after examining the documents provided by the new hire, determining the documents appear to be genuine, and using the document(s) to verify the accuracy and completeness of information provided in Section 1 regarding the employee’s identity and work authorization information. Employers are required to record in Section 2 which documents are provided by the employee and examined by the authorized representative.
- Employers or their authorized representative must fill out and complete Section 2 within 3 business days of when an employment begins (the hire date).
- The employee must provide original documents, not copies of documents from the Acceptable Document list that will prove identity and work authorization. Documents on List A (such as a U.S. Passport or Permanent Resident Card (“Green Card”) satisfy both requirements.
- Employers cannot ask for employees for specific documentation from the list, newly hired employees must be allowed to choose which document(s) they will present from the list of acceptable documents. Nevertheless, if a document from List B is presented, the individual must also submit a document from List C.
- Employers must accept a document from the Acceptable list that reasonably appears to be original, genuine, and relates to the employee presenting it.
- Employers must examine a presented document in an employee’s physical presence, but employers enrolled in E-Verify may examine documents remotely.
- Employers may, in a case where the employee is authorized to work, accept a receipt showing that an employee has applied to replace a document that was lost, stolen, or damaged. When this occurs, it needs to be documented and the employee must present the original document with ninety (90) days of the hire date. A receipt that merely shows the employee has applied for an initial grant of employment authorization does not meet this exception and is not acceptable.
- Employers are not required to make photocopies of the presented documents. However, many do. If an employer chooses to make photocopies of a presented document, it must do so for all Otherwise, it will be found to have engaged in an illegal hiring practice.[9]
C. Preparer and/or Translator Certification – Supplement A
Supplement A is completed in any situation were a preparer and/or translator assists an employee in completing Section 1. Each preparer and/or translator must complete, sign under penalty of perjury and date a separate certification area. Employers are required to maintain Supplement A with the employee’s completed Form I-9.
D. Reverifications and Rehires – Supplement B
It is not unusual that documents provided to establish work authorization have an expiration date. Employers are required to keep track of the expiration dates on employment authorization documents (referred to as EAD), and to take the steps required to reverify the employee’s work authorization before the original documents provided expire, but in no event later than three (3) business days after the expiration date.
- Employers should not reverify the following documents – U.S. Passports or passport cards, unexpired permanent resident or alien registration receipt card (Form I-551) or expired permanent resident card presented with form I-797, or List B documents.
- For employees rehired within three years of the date their Form I-9 was completed, an employer may choose to complete the applicable block on Supplement B or complete a new Form I-9.
E. Form I-9 Retention
Employers are required to maintain a properly completed Form I-9 as well as any photocopies (electronic images) made of the documents provided by the new hire, on each employee on the company’s payroll (if hired after November 6, 1986). Likewise, employers must also retain Form I-9s (and copies of supporting documents if made at hire) for each former employee for the longer of three years after the date of hire or one year after the date of employment ends.
- To calculate how long to keep a former employee’s Form I-9: (i) for individuals who worked for less than two years, retain their Form 1-9 for three years after the date of hire, and (ii) for individuals who worked for more than two years, retain their Form I-9 for one year after the day they stop working for you.
- Employers can retain Form I-9s on paper, microfilm or electronically. You only need to keep the pages that the employer, employee, preparer and/or translator signed. You do not need to keep Page 2 – the List of Acceptable Documents, or any blank supplemental pages.
- Paper forms must contain original handwritten signatures and may be stored off-site as long as the employer is able to present the Form I-9s within three business days of an inspection request by ICE, Department of Justice, or Department of Labor.
- If a paper Form I-9 form is completed, the original signed form (as well as any correction or update) can be scanned, uploaded, and retained electronically. Once properly scanned and securely saved in electronic form, the original paper form can be destroyed.
- There are specific requirements for any electronic system an employer chooses to use to either generate or retain completed Forms I-9, including without limitation, the ability to generate an indexing system that allows records to be identified and retrieved, and to reproduce legible and readable paper copies.
- There are specific requirements that must be met if an employer elects to complete Forms I-9 using electronic signatures, and employers who use these systems must maintain document of the business processes that create the retained I-9, modify and maintain the retained I-9 and establish the authenticity and integrity of the forms, such as audit trails.
- If documents provided by the employee are copied or scanned, those records must be kept with the I-9. Making copies does not take the place of completing the I-9 form.
- Never mail Form I-9s to USCIS or ICE, unless specifically requested by the federal agency.
F. Inspections
Employers are required to make the Forms I-9 available at your facility or at another location, such as a federal office designated by the federal agency involved. Refusal to comply or delays can lead to citations. During an inspection, the employer must:
- Retrieve and present only the Forms I-9 and supporting documents specifically requested. Supporting documents include any audit trails that show the actions performed within or on the system during a given time period.
- Provide the inspecting officers the appropriate hardware, software, personnel, and documents needed to locate, retrieve, read, and reproduce any electronically stored Form I-9, any supporting documents and their associated audit trails, reports and other data used to maintain the authenticity, integrity, and reliability of the records.
- If requested, give the inspecting officer any reasonably available or obtainable electronic summary files (such as spreadsheets) containing all information fields on any electronically stored Form I-9.
- If you participate in E-Verify, you should provide the Form I-9 that contain the E-Verify case verification numbers. If those case number are not on the Form I-9, the provide the E-Verify Case Detail Pages during the inspection.
G. Other Provisions
It is not possible to address all issues here. What follows is a summary of some keep points for what to do if errors or missing information is discovered. For other questions, USCIS provides a helpful site, “Handbook for Employers, M-274” which is kept up to date on-line, and can be found at 14.0 Some Questions You May Have About Form I-9 | USCIS.
- If an employer discovers an error or missing information in Section 1, the employer should first ask the employee to correct the error or add the missing information. Only the employee, or his/her preparer and/or translator may correct errors or omissions made in Section 1.
- Any errors on a Form I-9 in Section 2 or Schedule B should be corrected by the appropriate person responsible for that section or supplement.
- Errors should be corrected by lining out the incorrect information, entering the correct information, and initialing and dating the corrected information.
- In addition, the employer should create and attach a written explanation of why the information was missing or needed correcting. If the employee’s employment has ended, a signed and dated statement identifying the error or omission should be attached to the existing form, and explain why the corrections could not be made, i.e., the employee no longer works for you.
- If the employer failed to enter the date it completed Section 2 or Supplemental B, the employer should not back date the form, but instead enter the current date and initial the date field.
- If there are multiple errors or substantial errors (such as Section 2 being completed based on unacceptable documents), then the section can be redone on a new Form I-9 which is then attached to the original, and a memo providing an explanation for why the changes were made or why a new I-9 was used attached.
- If changes are made to the Form I-9 do not conceal them, by example, erasing text or using correction fluid. Doing so can lead to increased liability under federal immigration laws.
- All Forms I-9 should be stored in a secure way and be made available within three days of an official request for inspection.
[1] See generally 8 U.S.C. § 1324a. The provisions of the Immigration Reform and Control Act of 1986 added these provisions, and these provisions were further changed by the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
[2] See § 1324a (b)(1).
[3] The obligation to use Form I-9s to verify the identity and authorization to work of employees applies to religious non-profit agencies and churches.
[4] The most recent Form I-9 has the revision date 8/1/2023 and expires on 5/31/2027. It can be found here https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf.
[5] The misclassification of workers as independent contractors instead of employees has been a significant legal issue in many industries, and it is beyond the scope of this article.
[6] Civil fines can range from $272 to $2,701 for each missing I-9 for each employee, or for bad or missing paperwork, or in the case of intentional violates, the fines can range from $676 to $27,018 per worker.
[7] As discussed below, the duty to maintain a proper Form I-9 is not limited just to current employees, but also applies to former employees for specific time periods following separation.
[8] E-Verify is a free web-based service that is used to verify the employment eligibility of newly hired employees.
[9] This rule exists to limit the opportunity for discriminating against some individuals based on their national origin, citizenship or immigrant status in the I-9 and E-Verify process. The Immigration and Nationality Act, as amended, prohibits four (4) forms of unlawful conduct: (i) unfair documentary practices, (ii) citizenship or immigration status discrimination in hiring, firing, or recruiting, (iii) national origin discrimination in hiring, firing or recruiting, and (iv) retaliation.
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