About Form I-9, Employment Eligibility Verification
Notice regarding expiration of control number on Form I-9, Employment
I-9 expired March 31, 2007. USCIS is working on issuing a Form I-9 with an
updated control number. This expiration does not affect
employers' requirement to comply with employment eligibility verification
responsibilities, and employers should continue to use the current version of
the Form I-9.
The Immigration Reform and Control Act made all U.S. employers responsible to
verify the employment eligibility and identity of all employees hired to work in
the United States after November 6, 1986. To implement the law, employers are
required to complete Employment Eligibility Verification forms (Form I-9) for
all employees, including U.S. citizens.
FOR WHO MUST EMPLOYERS COMPLETE FORM I-9?
Every U.S. employer must have a Form I-9 in its files for each new employee,
- the employee was hired before November 7, 1986, and has been continuously
employed by the same employer.
- 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.)
CURRENT VERSION OF FORM I-9
The current version of the Form I-9 and the Handbook for Employers are dated
"(Rev. 5/31/5)Y", "(Rev. 05/31/5)N", or "(Rev. 11/21/91)N".
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. Note: 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.
The law protects certain individuals from unfair immigration-related employment
practices of a U.S. employer, including refusal to employ based on a future
expiration date of a current employment authorization document. The U.S.
government entity charged with oversight of the laws protecting against unfair
immigration-related employment practices is the Office of Special Counsel for
Immigration Related Unfair Employment Practices, which is part of the Civil
Rights Division of the U.S. Department of Justice.
AVAILABILITY OF FORMS I-9 IN FOREIGN LANGUAGES
The Form I-9 and most other USCIS forms are published in English only.
EMPLOYEE’S RESPONSIBILITY REGARDING FORM I-9
A new employee must complete Section 1 of a Form I-9 no later than close of
business on his/her first day of work. The employee’s signature holds him/her
responsible for the accuracy of the information provided. The employer is
responsible for ensuring that the employee completes Section 1 in full. No
documentation from the employee is required to substantiate Section 1
information provided by the employee.
EMPLOYER’S RESPONSIBILITY REGARDING FORM I-9
The employer is responsible ensuring completion of the entire form. No later
than close of business on the employee’s third day of employment services, the
employer must complete section 2 of the Form I-9. The employer must review
documentation presented by the employee and record document information of the
form. Proper documentation establishes both that the employee is authorized to
work in the U.S. and that the employee who presents the employment authorization
document is the person to whom it was issued. The employer should supply to the
employee the official list of acceptable documents for establishing identity and
work eligibility. The employer may accept any List A document, establishing both
identity and work eligibility, or combination of a List B document (establishing
identity) and List C document (establishing work eligibility), that the employee
chooses from the list to present (the documentation presented is not required to
substantiate information provided in Section 1). The employer must examine the
document(s) and accept them if they reasonably appear to be genuine and to
relate to the employee who presents them. Requesting more or different
documentation than the minimum necessary to meet this requirement may constitute
an unfair immigration-related employment practice. If the documentation
presented by an employee does not reasonably appear to be genuine or relate to
the employee who presents them, employers must refuse acceptance and ask for
other documentation from the list of acceptable documents that meets the
requirements. An employer should not continue to employ an employee who cannot
present documentation that meets the requirements.
QUESTIONS ABOUT GENUINENESS OF DOCUMENTS
Employers are not required to be document experts. In reviewing the genuineness
of the documents presented by employees, employers are held to a reasonableness
standard. Since no employer which is not participating in one of the employment
verification pilots has access to receive confirmation of information contained
in a document presented by an employee to demonstrate employment eligibility, it
may happen that an employer will accept a document that is not in fact genuine –
or is genuine but does not belong to the person who presented it. Such an
employer will not be held responsible if the document reasonably appeared to be
genuine or to relate to the person presenting it. An employer who receives a
document that appears not to be genuine may request assistance from the nearest
Immigration field office or contact the Office of Business Liaison.
DISCOVERING UNAUTHORIZED EMPLOYEES
It occasionally happens that an employer learns that an employee whose
documentation appeared to be in order for Form I-9 purposes 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 under such circumstances to provide satisfactory
documentation, employment should be discontinued (alien employees who question
the employer’s determination may be referred to an Immigration field office for
DISCOVERING FALSE DOCUMENTATION
False documentation includes documents that are counterfeit or those that belong
to someone other than the employee who presented them. It occasionally happens
that an employee who initially presented false documentation to gain employment
subsequently obtains proper work authorization and presents 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.
PHOTOCOPIES OF DOCUMENTS
There are two separate and unrelated photocopy issues in the employment
eligibility verification process. First is whether an employer may accept
photocopies of identity or employment eligibility documents to fulfill I-9
requirements. The answer is that only original documents (not necessarily the
first document of its kind ever issued to the employee, but an actual document
issued by the issuing authority) are satisfactory, with the single exception of
a certified photocopy of a birth certificate. Second is whether the employer may
or must attach photocopies of documentation submitted to satisfy Form I-9
requirements to the employee’s Form I-9. The answer is that this is permissible,
but not required. Where this practice is undertaken by an employer, it must be
consistently applied to every employee, without regard to citizenship or
The terms Resident Alien Card, 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 in the
U.S.. Once granted, this status is permanent. However, the document that an
alien carries as proof of this status may expire. Starting with the “pink”
version of the Resident Alien Card (the “white” version does not bear an
expiration date), and including the new technology Permanent Resident Cards,
these documents are valid for either two years (conditional residents) or ten
years (permanent residents). When these cards expire, the alien cardholders must
obtain new cards. An expired card cannot be used to satisfy Form I-9
requirements for new employment. Expiration dates do not affect current
employment, since employers are neither required nor permitted to re-verify the
employment authorization of aliens who have presented one of these cards to
satisfy I-9 requirements (this is true for conditional residents as well as
permanent residents). Note: Even if unexpired, “green
cards” must appear genuine and establish identity of the cardholder.
SOCIAL SECURITY CARD ISSUES
The Social Security Administration (SSA) currently issues SSA 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 SSA cards that are undistinguishable from
those issued to U.S. citizens.
Note on restricted SSA and other cards:
SSA “Valid only with INS (or DHS) Authorization”
card – issued to aliens who present proof of temporary work authorization; these
cards do not satisfy the Form I-9 requirements.
SSA “Not Valid for Employment” card – issued 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.
Internal Revenue Service (IRS) Individual Taxpayer Identification Numbers (ITINs)
– issued to aliens dealing with tax issues (e.g., reporting unearned income such
as savings account interest, investment income, royalties, scholarships, etc.).
An Individual Taxpayer Identification Number card is NOT
employment eligibility verification.
Aliens who satisfy I-9 requirements have been known to present a restricted SSA
card for payroll administration purposes (consistent with advice from SSA and
IRS). In cases like this, the employer needs to encourage the individual to
report the change in status to SSA immediately.
RETENTION OF FORMS I-9
All of an employer’s current employees (unless exempt) must have Forms I-9 on
file. A retention date can only be determined at the time an employee is
terminated. It is determined by calculating and comparing two dates. To
calculate date A, the employer should add three years to the hire date. To
calculate date B, the employer should add one year to the termination date.
Whichever of the two dates is later in time is the date until which that
employee’s form I-9 must remain in the employer’s employment eligibility
OFFICIAL INSPECTION OF I-9 RECORDS
Upon request, all Forms I-9 subject to the retention requirement must be made
available in their original form or on microfilm or microfiche to an authorized
official of the Bureau of Immigration and Customs Enforcement, Department of
Labor, and/or the Justice Department’s Office of Special Counsel for Unfair
Immigration-Related Employment Practices. The official will give employers at
least 3 days advance notice before the inspection. Original documents (as
opposed to photocopies) may be requested.
FORM I-9 REQUIREMENTS OF NEW OWNERS OF EXISTING BUSINESSES
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
It is not unusual for a U.S. 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. Note:
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.
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.
For more information, please contact the
LL.M. Law Group. LL.M. Law Group can answer questions via email, fax and phone.