Questions and Answers about I-9 Forms
Where can I get I-9 forms? The I-9 form is available on the Internet at http://uscis.gov/graphics/formsfee/forms/i-9.htm.
For which workers is it unnecessary to complete a Form I-9? Generally speaking, every US employer must have a Form I-9 in its files for each new employee. Form I-9 need not be completed for those individuals:
providing domestic services in a private household that are sporadic, irregular, or intermittent;
providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)
What version of Form I-9 must I use? In May 2005, U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) updated Form I-9 to eliminate outdated references to the former Immigration and Naturalization Service (INS). Aside from the updated references, the form remains the same as the 11/21/1991 edition; therefore, employers may meet their employment verification requirements under the law by completing either version of the form.
Note that, because Form I-9 does not reflect substantive changes that have occurred since 1991, some of the "List A" items in the "List of Acceptable Documents" are no longer acceptable. See 36,240 for more information about which items have been removed. The Department of Homeland Security (DHS) is planning to make substantive changes to the Form I-9 in connection with previous rulemakings and introduce a new Form I-9 at the end of this process.
Do I have to use an "official" form? Employers may copy or electronically generate blank I-9 forms provided that they are legible. Electronically generated forms cannot change the name, content, or sequence of the data elements and instructions. When copied or printed, the text of the two-sided form may be reproduced in either double-sided or single-sided copies.
Who completes the form? Section 1, Employee Information and Verfication, is completed and signed by the employee when employment begins. The employer may assist the employee, however. When doing so, the Preparer/Translator Certification block must be filled in and the employee must sign the certification block in section 1. Section 2, Employer Review and Verification, is completed and signed by the employer. The employer also completes and signs Section 3, Updating and Reverification. By May 2005, electronic signatures will be acceptable under a law change that will take effect the earlier of the issuance of implementing regulations or 180 days after the law change's October 30, 2004 enactment date.
May I accept photocopies of the documents? No. Employees must present original documents with the exception that an employee may present a certified copy of a birth certificate.
Do I have to authenticate the documents? Employers must examine the document(s) and decide if they appear genuine and relate to the person presenting the document(s). If so, they must be accepted. If a document does not reasonably appear on its face to be genuine and to relate to the person presenting it, you must not accept it. If you suspect fraud, you may report it to your local U.S. Immigration and Customs Enforcement office.
What are some indications that a document may not be genuine? When reviewing documents for genuineness, you can look for inconsistencies in the typeface and review information elements on the front of a document that must comfort with corresponding information on the back. A social security card that contains more than nine digits or that begins with "000" is a sign of fraud.
Can I verify an employee's eligibility with the Department of Homeland Security or the U.S. Citizenship and Immigration Services? Neither the USCIS's Office of Business Liaison nor any Department of Homeland Security official is permitted to check records to verify employment outside of the Pilot Program. You cannot and should not attempt to verify "A" numbers with the U.S. Citizenship and Immigration Services. "A" number verification is authorized only by employer participants in the Department of Homeland Security Employment Verification Pilot Program. Questions about the program can be directed to the SAVE branch at (888) 464-4218. If you suspect fraud, you may report it to the local U.S. Immigrations and Customs Enforcement office.
What if the individual is being hired for less than three business days of work? Then, the documentation must be completed by the end of the first working day.
When are expired documents acceptable? Documentation must be rejected if it is expired, with two exceptions:
What can be done if the individual does not have the required documents? If an individual is unable to provide the required document or documents within the required time period, the individual must present a receipt for the application of the document(s) within three business days of the hire and present the required document(s) within 90 days of the hire.
Can I fire an employee who fails to produce the required document(s) within three (3) business days? Yes. You can terminate 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 (3) business days of the date employment begins. However, you must apply these practices uniformly to all employees. 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.
Are there special procedures for dealing with minors and individuals with disabilities? Minors under the age of 18 who are unable to produce an identity document are exempt if the following procedures are used:
the minor's parent or legal guardian completes on the Form I-9 Section 1 --"Employee Information and Verification" and in the space for the minor's signature, the parent or legal guardian writes the words, "minor under age 18;"
the minor's parent or legal guardian completes on the Form I-9 the "Preparer/Translator certification;"
the employer or the recruiter or referrer for a fee writes in Section 2 --"Employer Review and Verification" under List B in the space after the words "Document Identification #" the words, "minor under age 18."
Individuals with disabilities who are being placed into employment by a nonprofit organization, association or as part of a rehabilitation program, may follow the procedures to establish identify by substituting the term "special placement" for "minor under age 18," and permitting a representative from the nonprofit organization, association or rehabilitation program arranging for their employment to fill out and sign in the appropriate section of the Form I-9.
Can an individual's documents be copied? The documents presented by a job applicant to establish personal identification and authorization for employment may be copied and the copies retained for the sole purpose of complying with the verification requirements. If a copy is made, it must be kept with the I-9 form.
Can copies of the individuals' documents be substituted for a completed I-9? No. Photocopying work authorization identification documents does not relieve the employer of the responsibility for completing section two of the I-9 form. Employers must write the new hire's document identification number and the expiration dates on the I-9 form itself.
What should be done with Forms I-9 after they are completed? Unlike tax forms, for example, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in its own 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 Form I-9 need to be retained for all current employees, as well as 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, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection.
U.S. immigration law does not prescribe or proscribe storage of a private employer's I-9 records in employee personnel files. As a practical matter, however, 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.
What happens if I properly complete a Form I-9 and the USICE discovers that my employee is not actually authorized to work? You cannot be charged with a verification violation; however, you cannot knowingly continue to employ this individual. You will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien unless the government can prove you had actual knowledge of the unauthorized status of the employee.
Must a new I-9 form be completed if a previously-employed individual is rehired? If the employer completed an I-9 form within three years of the date the individual is rehired, the employer may inspect the previously completed I-9 form and, if the individual is still eligible to work, update the I-9 to reflect the date of rehire. Where eligibility has expired, the employer must repeat the whole process of verification, including documentation and the Form I-9 before the employee can be rehired.
Must new owners of existing businesses complete Forms I-9 for employees who were employees of the previous owner? In a case where a new owner of a business is a successor in interest, having acquired an existing business, the new employer may keep the acquired employer's I-9 records rather than complete new Forms I-9 on employees who were also employees of the acquired employer. However, since the new employer would be responsible for any errors, omissions or deficiencies in the acquired records, it may choose to protect itself by having a new Form I-9 completed for each acquired non-exempt employee and attached to that employee's original Form I-9.
How does the I-9 requirement apply to remote hires? It is not unusual for a US employer to hire a new employee who doesn't physically come to that employer's offices to complete paperwork. In such cases, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountant, attorneys, personnel officers, foremen, etc. An employer should choose an agent cautiously, since it 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 must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.
How does the I-9 requirement apply to PEOs? Some business entities contract with professional employer organizations (PEOs) to handle the personnel and benefits aspects of the business. This may include completion and retention of Forms I-9. Where the business entity and the PEO are "co-employers," one Form I-9 need be completed between the co-employers for each employee who was simultaneously hired by the co-employers. A business entity and PEO will be deemed a "co-employer" if, among other things, an employer/employee relationship is said to exist between the business entity and PEO on the one hand, and the individual on the other, even though the employee is only performing one set of services for both co-employers. Therefore, the authority to hire or terminate employment would have to be in the hands of both the business entity and the PEO. Since both entities are employing the individual, however, both entities remain equally responsible for meeting the Form I-9 requirements and equally liable for any failures to meet those requirements. Accordingly, the employer is fully responsible for errors, omissions, and deficiencies in the PEO's processing.
Must a new I-9 form be completed if an individual's employment eligibility document expires? If a current employee's work authorization is about to expire, employers may re-verify work eligibility by examining any document that reflects the employees authorization to continue working. This information is recorded on Section Three of the I-9 form. If Section Three of the form has already been used, employers may use a new form.
What steps must be taken when an employee's Resident Alien card expires? None, really. Re-verification of a Resident Alien card is unnecessary as the employee alien's status does not expire. There is no need to track the expiration date of such cards; but, if an employer does realize that a Resident Alien card has expired, the employee could be notified as a courtesy. These cards are issued for such long periods of time that the holder sometimes forgets that it should be renewed.
When is re-verification necessary? You must re-verify employment eligibility when:
an employee's employment authorization (Section 1) has expired, or
an employee's evidence of employment authorization (Section 2) has expired.
Re-verification is not necessary for a U.S. passport or "green card" (Form I-551). However, re-verification is necessary for temporary evidence of permanent resident status in the form of an unexpired foreign passport containing a temporary I-551 ADIT stamp.
Re-verification must be done no later than the date that employment authorization or employment authorization documentation expires. Employees can present any combination of acceptable documents; they need not present a new version of the same document that was first presented but subsequently expired.
You may also re-verify (instead of completing a new I-9) when an employee is rehired within three years of the date that the I-9 was originally completed and the employee's work authorization or evidence of work authorization has expired.
How do I document extensions of stay? Certain nonimmigrants with pending applications to extend their stay are automatically authorized to continue employment with the same employer for up to 240 days beginning on the date of expiration of the authorized stay. This extension should be clearly reflected as an update to any expiration date noted in Sections 1 and 2. The update should be initialed and dated.
Can the I-9 forms be stored electronically? Previously, filing options included only paper, microfilm or microfiche. However, a new law took effect on April 29, 2005 that allows for electronic signature and storage of employee I-9 forms.
What should I do if I discover that an I-9 form is not on file for a specific employee? Immediately ask the employee to complete Section 1 of an I-9 form and submit documentation as required in Section 2. The new form should be dated when completed. Never post-date a Form I-9. If an employee does not provide acceptable documentation, you must terminate employment or risk being subject to penalties for knowingly continuing to employ an unauthorized worker if the individual is not in fact authorized to work.
What should I do if I discover that an employee is not authorized to work? If you discover that an employee has been working without authorization, you should re-verify work authorization. Allow such an employee the opportunity to present acceptable documentation and complete a new I-9. Be aware, however, that you will be subject to serious penalties if you knowingly continue to employ an individual who is unauthorized to work in the United States.
Where can I get more information? INS Form M-274, Handbook for Employers, is available at http://uscis.gov/graphics/lawsregs/handbook/hand_emp.pdf. The Office of Business Liaison (OBL) is available to educate the public on immigration-related employment, investment, and school issues. The OBL provides information on the employment eligibility verification process, as well as the opportunities available to employers to hire and/or "sponsor" foreign workers in accordance with U.S. Government regulations administered by a variety of federal agencies. They maintain a website at http://uscis.gov/graphics/services/employerinfo/oblhome.htm. They may also be contacted by phone: 1-800-357-2099.
Reprinted with permission. © CCH
Questions and Answers about I-9 Forms.
Questions and Answers about I-9 Forms
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