Employers must complete a Form I-9 (Employment Eligibility Verification) for every employee hired after Nov. 6, 1986. Form I-9 serves as proof that the employer has verified the employee’s identity and authorization to work legally in the U.S.
You must keep an employee’s completed Form I-9 for as long as they are employed by you. If they worked for you for less than two years, you must retain their I-9 for three years after their first day of employment. If they worked for you for more than two years, you must keep it for one year following their discharge date.
You may store Form I-9s in your workplace or off-site, but they must be readily available. You are required to present them within three business days of a government inspection request.
There are three sections to Form I-9:
- Section 1: Employee Information and Attestation
- Section 2: Employer or Authorized Representative Review and Verification
- Section 3: Reverification and Rehires
We’ll look at each of these in greater detail below.
Completing Form I-9
Section 1 of Form I-9 serves as an employee’s attestation that they are legally authorized to work in the U.S. The employee must complete Section 1 on or before their first day of employment.
They must also provide:
- Their full legal name (If you have an employee with two last or first names, hyphenation or apostrophes in their name, etc., see the U.S. Citizenship and Immigration Services (USCIS) guidance on completing Section 1 of Form I-9.)
- Other legal last names they’ve used, such as a maiden name
- Their date of birth
In addition, they must check a box indicating that they are:
- A U.S. citizen
- A lawful permanent U.S. resident
- A noncitizen authorized to work in the U.S. (in which case they must provide their Alien Registration Number/USCIS Number, Form I-94 admission number or foreign passport number (including country of issuance) and the date their employment authorization expires)
Every employee must sign and date their Form I-9. If the employee is completing the paperwork with the help of a preparer or translator, they must also give their name and address and sign and date the form certification. (USCIS provides additional information on compliance requirements for completing and signing Section 1 of Form I-9 with the help of a preparer or translator.)
As a best practice, ask yourself:
- Has the employee completed all required fields?
- Has the employee supplied their Social Security number? (This is required only if your organization participates in E-Verify — more on this below.)
- Has the employee (and their preparer or translator, if applicable) signed and dated the form?
- Have you checked if the employee indicated that their employment authorization will expire? If the authorization will expire, make a note that you will likely need to reverify their employment authorization when it expires. (USCIS recommends reminding employees of their need to reverify at least 90 days before their employment authorization expiration date. This will give them time to gather the necessary documents, which they must present on or before their employment authorization expiration date.)
The employee must provide supporting paperwork from a list of acceptable documents. (Documents fall under the categories of List A, B or C.). These documents serve as evidence of their identity and employment authorization.
The employee must present either:
- One List A document (which shows their identity and work authorization)
- One List B document (which shows just their identity) and one List C document (which only shows their work authorization)
The supplied documents must be current. And if you participate in E-Verify, List B documents must include a photo.
You (or your authorized representative) must physically review the supplied information. If the documents reasonably appear to be genuine and for the employee, you must record the information from the documents onto Form I-9 in Section 2.
You have three business days from the employee’s hire date to complete Section 2. So, if your employee begins work on a Monday, you must complete Section 2 by Thursday of that week, USCIS explains. But if the employee’s job will last fewer than three days, you must complete Section 2 by their first day of work.
If your employee does not have the appropriate documents, they may present a receipt showing they have applied to replace a List A, B or C document that has been damaged, lost or stolen. Receipts are only valid for 90 days after the employee’s hire date, or 90 days after the date their employment authorization expired in the event of recertification.
When completing Section 2, be sure to:
- Enter the employee’s last name, first name and middle initial as applicable, and your last name, first name, signature and title as the one completing Section 2.
- Include the citizenship or immigration status code that was checked off in Section 1 (i.e., citizen, noncitizen national, lawful permanent resident or alien authorized to work in the U.S.).
- Confirm the supplied documents are original and acceptable per the list of acceptable documents. If the employee has supplied a receipt, confirm its acceptability by physically examining it.
- Give the employee an opportunity to present an acceptable document or receipt if the supplied documentation does not appear to be genuine.
- Enter the title of the supplied documents, including numbers, expiration dates and issuing authorities.
- Note the employee’s start date and the date on which you examined the documents to verify the employee’s identity and employment authorization.
- Include the organization’s business name and address. If you have multiple work sites, use the address that applies to the employee. For example, indicate where Form I-9 was completed and not headquarters or another work location.
- Make sure the expiration date for employment authorization matches the expiration date on the documents the employee has presented. For reverifications, if the dates don’t match, use the earlier date, says USCIS.
- Return the supplied documents to the employee.
USCIS notes that under special circumstances, an employee may present documents that you may not be familiar with — for example, if the employee is a minor, domestic worker or disabled individual working on special placement. (Learn more about how to complete Form I-9 for special categories.)
A common question employers have is how to enter the date employment begins. USCIS explains this “may be a current, past or future date.” In other words, if you are completing Section 2 of Form I-9 on the employee’s first day of work, enter the current date. If you are completing Section 2 after employment has already begun, enter a past start date. And if you are completing Section 2 prior to the employee’s start date, enter their start date. If they ultimately begin work on a different date, cross out the start date and write in the correct date, and then date and initial your correction.
When attesting to the date you examined the employee’s supporting documents, enter the date you actually completed the examination. That completes Section 2.
This section pertains to situations involving reverification and rehiring.
You must reverify an employee whenever:
- Their employment authorization documents have expired.
- They are rehired within three years of the original completion of their Form I-9. (You may also elect to complete a new Form I-9 for a rehired employee.)
- They alert you that their name, birthdate or Social Security number is “substantially different” from what they’ve previously supplied and they cannot provide evidence that links the new information to the identity previously provided.
According to USCIS, you do not need to reverify:
- A U.S. citizen or noncitizen national
- A lawful permanent resident who has already presented a Form I-551 or Permanent Resident or Alien Registration Receipt card for Section 2 (This includes conditional residents.)
- List B documents
- An employee with a legal name change who has documentation linking the new and old identities (However, you should maintain their Form I-9 with the correct information and note any name changes in Section 3.)
When completing Section 3, be sure to copy the employee’s last name, first name and middle initial as entered in the first section of Section 2.
Employees who are eligible for reverification must present unexpired documents from List A or C. Receipts for lost, stolen or damaged documents are acceptable forms of reverification documentation.
USCIS cautions that if your employee’s employment authorization expires or their documentation expires, “you must reverify to ensure your employee is still authorized to work. To find out if your employee’s employment authorization expires, look in Section 1 for the date that employment authorization expires and in Section 2 for the date that the employment authorization document expires.”
The expiration date in Section 1 cannot match the document expiration date recorded under List A or C in Section 2. “The earlier date must be used to determine when reverification is necessary,” USCIS adds.
There are three steps to reverification:
- Examine the unexpired documents to assess whether they are genuine and they are the employee’s. If you suspect a document is not genuine, give the employee an opportunity to present other List A documents.
- Record the title, number and expiration date (if any) for the document.
- Sign and date Section 3.
If you are reverifying the employee because of a legal name change without supporting documentation, write their original hire date in Section 2 where it calls for the employee’s first day of employment. Then attach the new Form I-9 to the last one that was completed.
For additional information on how to comply with Form I-9 requirements, download the USCIS Handbook for Employers: Guidance for Completing Form I-9. This publication provides detailed information on how to complete the various sections of Form I-9, correct errors, avoid discrimination, retain records and more.
E-Verify is a free government program that allows you to electronically confirm an employee’s employment eligibility after they have completed Form I-9.
- Is not mandatory for most employers
- Cannot be used to reverify expired employment authorizations
- Requires a Social Security number and a photo for List B identity documents
Once an E-Verify case has been opened based on the information supplied on a Form I-9, the Department of Homeland Security (DHS) or the Social Security Administration (SSA) determines if a “tentative non-confirmation” (mismatch) has occurred. This means that the information the employer entered in E-Verify from Form I-9 did not match the records DHS or SSA had available for review.
But just because an employee receives notice of a potential mismatch doesn’t automatically mean they aren’t authorized to work in the U.S. Within 10 days of receiving a mismatch case result, you have a duty to notify the employee. At that point, the employee can decide whether to take action to resolve the issue. The employee has until the 10th federal government workday following the issuance of the mismatch result to inform you of their decision. If you don’t hear back from them by then, you may close the E-Verify case and terminate their employment.
For more information, visit the DHS E-Verify website.
Avoiding immigration-related discrimination claims
During the hiring process, you can be vulnerable to citizenship and national origin-related discrimination claims. To avoid a lawsuit, follow this advice from the Department of Justice:
- Don’t treat individuals differently with respect to hiring, firing, recruitment or referrals for a fee based on citizenship status, immigration status or national origin.
- Don’t restrict hiring to U.S. citizens or make inquiries into citizenship status unless a “law, regulation, executive order, or government contract requires” you to do so.
- Don’t demand more or different documents than what’s required by law to verify a worker’s employment authorization.
- Don’t request specific documents, either during the Form I-9 or the E-Verify process, or reject documents that reasonably appear to be genuine based on an employee’s citizenship, immigration status or national origin.
- Don’t intimidate, threaten, coerce or retaliate against anyone for blowing the whistle on employment verification processes that are unlawful.
Watch for Form I-9 updates
DHS is working on a new version of Form I-9 that will include minor changes to the form itself and the instructions for completion. DHS recently announced that employers should continue to use the version of Form I-9 (dated Oct. 21, 2019) that was set to expire on Oct. 31, 2022, until further notice. DHS says it will publish an announcement in the Federal Register about the new version of Form I-9 when it becomes available, so look out for that.
DHS also has extended measures providing flexibility in Form I-9 completion due to the COVID-19 pandemic. Specifically, if an employee hired on or after April 1, 2021, works exclusively on a remote basis due to COVID-19, they are exempt from physical inspection requirements until they begin non-remote employment on a consistent, predictable or regular basis, or these flexibilities are no longer available.
Also, if you have not been able to timely inspect and verify (in person) the Form I-9 supporting documents of an employee hired since March 20, 2020, you should document the reason for your inability to inspect and verify the documents in a memo and keep the memo with the employee’s Form I-9. For example, if an employee no longer works for your organization, you would want to document the situation in case DHS Immigration and Customs Enforcement conducts a Form I-9 audit.
According to DHS, these flexibility measures will remain in effect through July 31, 2023.
Blue Ridge Risk Partners is a top 75 independent insurance agency in the United States. With 22 offices and counting throughout Maryland, Pennsylvania, and West Virginia and access to hundreds of carriers, we are able to meet your unique insurance needs.