I-9 Compliance

Frequently Asked Questions

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What is the I-9 Form?

The Immigration Reform and Control Act (IRCA) was passed in 1986 and the I-9 employment eligibility verification process enacted to prevent employment of illegal immigrant workers in the United States. Form I-9 verifies both the identity and eligibility for employment of the individual worker. I-9 verification is required of individuals hired after November 6, 1986 regardless of U.S. citizenship, Legal Permanent Resident (Green Card status) or nonimmigrant status. The I-9 Employment Verification process cannot be used to "pre-screen" employees, and the obligation to review documents is not triggered until a person has been hired.

Who is an "employee"?

An employee is any person who receives remuneration such as a salary or wage (whether rated hourly or per annum) in exchange for labor or services performed for the employer. The employer controls all aspects of the employee's employment such as hiring, firing, disciplining, job duties and materials & equipment used by the employee in his/her employment.

Where can I get the new Form I-9

Both Form I-9 and the Employer Handbook are available as downloadable pdfs at www.uscis.gov or http://www.usdoj.gov/crt/osc/htm/facts.htm. Employers without computer access can order USCIS forms by calling our toll-free number at 1-800-870-3676. Individuals can also request USCIS forms and information on immigration laws, regulations, and procedures by calling the National Customer Service Center toll-free at 1-800-375-5283. The updated form to use has a revision date of June 5, 2007. Employers cannot use earlier versions of Form I-9.

Is the Form I-9 available in different languages?

Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version only as a translation guide for Spanish-speaking employees, but must complete and maintain the English version in their records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

Does the June 5, 2007 Form I-9 have to be completed for all my employees or just the new ones?

Employers only need to complete the updated June 2007 Form I-9 for new employees. Employers do not need to complete new forms for existing employees. However, employers must use the updated 2007 Form I-9 when their employees require re-verification.

Does an I-9 have to be completed for every worker?

An I-9 has to be completed even if the employer only has one employee. Although an I-9 is required for individuals working for an employer, certain individuals are exempted from I-9 requirements: (i) employees hired before Nov. 7, 1986 and continuously employed by same employer; (ii) employees hired for private, casual domestic work on irregular basis; (iii) independent contractors

How does an employer comply with and complete the I-9?

After a new employee is hired, his/her identity and employment eligibility must be verified by completing an Employment Eligibility Verification Form (Form I-9). On the first day of work, the employee must complete section 1 of the form, in which he or she certifies employment eligibility by checking whether he or she is a U.S. citizen, lawful permanent resident, or an alien otherwise authorized to work in the United States. Although the employee must complete and sign section 1, it is the employer's responsibility to ensure that section 1 is completed before the end of the employee's first work day. (If an employee is unable to complete section 1 on his or her own, it may be prepared by another person who must sign the preparer/translator certification.)

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What documentation is no longer acceptable on the I-9 (as of June 5, '07)?

• Certificate of U.S. Citizenship (List A #2)
• Certificate of Naturalization (List A #3)
• Unexpired Reentry Permit (List A #8)
• Unexpired Refugee Travel Document (List A #9)
• Form I-151 has been withdrawn from circulation and is no longer an acceptable List A document #5.
  However, Form I-551 remains an acceptable List A document #5.

Can the employer specify which documents an employee must present for the I-9?

No, an employer may not specify the documents required or it may be seen as indication of unlawful immigration related employment discrimination. An employer must be careful not to discriminate against new employees by limiting the choice of acceptable documents, rejecting documents that reasonably appear to be genuine, or by treating individuals differently based upon their national origin, or citizenship or immigration status.

What should an employer do if the employee is unable to provide documentation within three (3) days of the employment start date?

If the I-9 requirements are not met within (3) three business days from the hire, the employee must cease work until the I-9 form is completed.

Can an employer make copies of I-9 documentation provided by the employee?

Yes, I-9 regulations allow employers to make copies of the documents presented to show I-9 compliance as along as the documentation is kept with the I-9 form and is required for all employees, not just certain groups.

When are receipts acceptable in lieu of the documents themselves?

If the original has been lost, stolen, or damaged, a receipt for application of a replacement document can be accepted. The person must show the original replacement document within 90 days of hire. - Form I-94 with a refugee admission stamp is acceptable as a receipt for 90 days, within which the person must present a social security card (unrestricted) with a List B item, or an EAD card (Employment Authorization Card). The stamp may include a reference to Section 207 of the Immigration and Nationality Act rather the word "refugee". - A receipt for application to extend an EAD card's employment authorization expiration date is not acceptable. - A receipt is never acceptable for employment lasting less than 3 business days.

Can an employer require the employee to complete the Social Security box in Section 1?

The Social Security box in Section 1 is optional. The employer cannot compel the employee to complete that box. Also, in a recent court decision, the 8th Circuit Court of Appeals concluded that an unsigned social security card can be used as evidence of authorized employment for I-9 purposes.

How do I comply with I-9 for rehires?

An employee who is rehired within (3) three years of the date of the original hire (date the original I-9 form was completed) does not have to complete a new I-9 form, as is still eligible to work on the same basis as previously indicated on the I-9 form.

Does an employer have to re-verify the employment eligibility of an employee whose permanent resident (Green Card holder) card has expired?

No. On August 1, 1989, Immigration and Naturalization Service (INS) began issuing a revised Resident Alien Card, Form I-551, to new permanent resident aliens. The I-551 is a List A document because it establishes both identity and employment eligibility. The card will also contain an expiration date, making the card valid for 10-years from the date of issuance. The applicant will then be required to obtain a new card. However, because employment authorization is unlimited for I-551 holders, there will be no need to update the I-9.

How long does the I-9 have to be retained by the employer?

The Form I-9 must be retained for three years after the date of hire, or one year after the date employment ends, whichever is later.

Should the I-9 be maintained in a separate file from the personnel file?

Generally, it is considered "best practice" to from other personnel/HR records for several reasons: First, if you receive notice of an I-9 audit, you will not want to waste time searching for I-9 Forms in your personnel files. Second, keeping your I-9 Forms separate from other records makes it easier to conduct periodic self-audits of your compliance status. Finally, since The Department of Homeland Security (DHS), the Department of Labor (DOL) and Office of Special Counsel (OSC) can review the forms, it makes it easier for these audits to be conducted without undue intrusion into your personnel/HR records.

What can an employer be found liable for?

Failure to comply properly with I-9 rules and provisions
- Knowingly hiring, continuing to employ or contracting to obtain the services of an illegal/unauthorized alien worker
- Providing or knowingly accepting false social security cards
- Pattern and practice of I-9 compliance failure/violations
- Demanding excessive documentation and indication of illegal discrimination
- Refusal to hire someone with temporary work authorization
- Not accepting valid documentation chosen/presented by an employee
- Treating individuals differently based upon their national origin, or citizenship or immigration status What sanctions and penalties can an employer be subject to for failure to comply? - Failure to complete and retain the Form I-9 (Paperwork violations/offenses) or Knowingly hiring unauthorized workers (Substantive violations/offenses) violates the immigration laws of the United States, and can lead to prosecution and civil penalties. Paperwork violations can result in fines between $100 and $1,100 for each individual for which a mistake is made.
Substantive violations can result in fines of $200-$2,000 for each unauthorized worker for first-time offenses before Sept. 30, 1999, and $275-$2,200 after Sept. 29, 1999; $2,000-$5,000 for second-time offenses before Sept. 30, 1999, and $2,200-$5,500 after Sept. 29, 1999; and $3,000-$10,000 for each subsequent offense before Sept. 30, 1999, and $3,300-$11,000 after Sept. 29, 1999. Criminal penalties may also be imposed where a pattern or practice of violation is indicated or where the employer knowingly hired 10 or more illegal aliens smuggled into the U.S. in violation of alien smuggling/criminal harboring provisions.

Can an employer advertise for a position to require only U.S. citizens?

Do not institute a U.S. citizens-only hiring policy or U.S. citizens and green card (or lawful permanent resident) hiring policy unless otherwise required in order to comply with law, regulation, executive order, or government contract. There are many types of immigrants who are legally eligible to work in the United States, including refugees and asylees.