Employer I-9 Compliance in a Nutshell

What is Form I-9?

Form I-9 is the Employment Eligibility Verification Form issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services. By law all US employers are responsible for completion and retention of Forms I-9 for all US citizen as well as non-citizen employees it has hired for employment in the US after November 6, 1986. This process, which includes an employee's attestation of work authorization and an employer's review of documents presented by that employee to demonstrate identity and work authorization, is the means by which US employers document that they have verified whether a newly hired employee is eligible to work in the US. The employee and employer both must provide information and signatures as indicated on the form.

Can I verify an employee's work authorization?

ONLY officially registered participants in the Department of Homeland Security's automated verification system pilot projects are permitted to verify the work authorization of a newly hired employee. Questions about participation in the Department of Homeland Security verification pilot programs may be directed to the Department of Homeland Security, SAVE Program at (202) 514-2317 or (888) 464-4218.

Can I store Forms I-9 electronically?

Currently, the only storage options are hard copy or microfiche or microfilm.

Are changes anticipated in the Form I-9?

Changes in the Form I-9 are expected in late 2005 or early 2006, including a reduction in the number of documents that can be submitted by new employees to demonstrate their employment eligibility. (The interim rule of September 30, 1997, reduced the number of documents that are acceptable for the I-9; however these changes are not reflected on the Form I-9. See 8 C.F.R. 274a.2(b)(1)(v) for the most up to date list of acceptable documents.)

The I-9 Process In A Nutshell

Introduction to Worksite Enforcement and Employment Eligibility Verification

To implement the means by which US employers document that they have verified whether a newly hired employee is eligible to work in the US, employers are required to complete Employment Eligibility Verification Forms I-9 for all employees. An employer's obligation to review documents is not triggered until a person has been hired, whereupon the new employee is entitled to submit a document or combination of documents of his choice (from List A or a combination of a List B and List C document on the reverse side of the I-9 form) to verify his identity and work eligibility.

Protection from Discrimination

The I-9 process may not be used to pre-screen employees for hiring. Furthermore, an employer may not demand more or different documents than an employee chooses to present, provided that the documents presented are acceptable under the I-9 requirements. An employer may not demand documents issued by the Department of Homeland Security (formerly the Immigration and Naturalization Service) in lieu of other acceptable document(s) from List(s) A or B and C and may not consider the fact that work authorization documents have future expiration dates as cause not to hire or to terminate.

Anti-Discrimination Warning: Employers are not permitted to require a particular document(s) or combination of documents. The employer must accept any document from List A or combination of documents from Lists B and C, at the employee's discretion. Likewise, employers may neither require nor accept any more documentation than the minimum necessary to substantiate identity and work eligibility.

Standards of Review

The employer must review and accept documents that reasonably appear to be genuine and to relate to the person presenting them (e.g., the name on the Social Security card should be compared to the name on the state driver's permit and the photo on the driver's permit compared to the appearance of the person who presented the documents). Employers may reject documents it they do not reasonably appear to be genuine and ask employees who present questionable documentation for other documentation that satisfy the I-9 requirements. Employees who are unable to present acceptable documents should be terminated. Employers who choose to retain such employees may be subject to penalties for improper completion of the form or for "knowingly continuing to employ" unauthorized workers if such workers are in fact unauthorized.

For whom is a Form I-9 unnecessary?

• Employees hired before November 6, 1986, and continuously employed by the same employer;
• Individuals performing casual employment who provide domestic service in a private home that is sporadic, irregular or intermittent;
• Independent contractors (see Employer Information Bulletin 110);
• Workers provided to employers by individuals or entities providing contract services, such as temporary agencies (in such cases, the contracting party is the employer for I-9 purposes)

NOTE:

• An employer is not permitted under the law to contract for the labor of an individual whom he knows is not authorized for employment. Employers who violate this prohibition may be subject to civil and criminal penalties.
• Employers are not permitted to request more or different documents than are required or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual presenting the document.

NOTE: An employee may not be able to provide a social security number if the Social Security administration has not yet issued the individual a social security card.6 This information block is optional. Therefore, an employer cannot require an employee to complete it.

Retention of I-9 Records

An employer must retain the I-9 form of each employee either for three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later. All current employees, therefore, must have I-9's on file with the employer. Upon request, all Forms I-9 subject to the retention requirement must be made available to an authorized official of the Department of Homeland Security, Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practices of the Department of Justice.

Missing I-9 Forms

An employer who discovers that an I-9 form is not on file for a given employee should request the employee to complete section 1 of an I-9 form immediately and submit documentation as required in Section 2. The new form should be dated when completed--never post-dated. When an employee does not provide acceptable documentation, the employer must terminate employment of risk being subject to penalties for "knowingly" continuing to employ an unauthorized worker if the individual is not in fact authorized to work.

Discovering an Unauthorized Employee

An employer who discovers that an employee has been working without authorization should reverify work authorization by allowing such an employee another opportunity to present acceptable documentation and complete a new I-9. However, employers should be aware that if it knows or should have known that an employee is unauthorized to work in the United, they may be subject to serious penalties for "knowingly continuing to employ" an unauthorized worker.

Responsibility of the Employee

Employees need to provide the information requested in Section 1. In particular, they must attest to their status by checking the applicable box indicating that they are:

• Citizen/national of the United States (top box),
• Lawful permanent resident with a "green card" (middle box), or
• lien authorized to work in the United States until a specified date (bottom box).

Employees must sign and date this Section of the Form I-9 when completed.

Employer Review and Verification

The second part of the form requires the employer to list the documents that were produced by the worker to verify his or her identity and employment eligibility. There are three groups of documents that a worker may use for this purpose. The documents that can be presented by employees are listed on the reverse side of the Form I-9.7 A worker may choose to provide a List A document (which establishes both identity and work authorization), or he/she may choose to provide one List B document (which establishes identity) and one List C document (which establishes work eligibility). Documentation must be rejected if it is expired, with two exceptions: the U.S. passport (a List A document) and all List B documents. Employers who fail to complete the Form I-9 or who hire or continue to employ workers they know are unauthorized to work in the United States may be subject to civil and, in certain cases, criminal penalties. See Employer Information Bulletin 111.

Employers cannot refuse to hire an individual because the individual's document has an expiration date.

Original Documents Only - The employer or employer's representative/agent must personally review original document(s) that demonstrate an employee's identity and eligibility to work in the US. Photocopies, or numbers representing original documents, are not acceptable. Exception: List C, #3, a certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the US bearing an official seal is acceptable. All identifying information, including the document title, the issuing authority, the document number, and/or the expiration date (if applicable) must be provided in full.

Receipt Rule: Employees who do not possess the required documentation when employment begins may not submit receipts showing that they have applied for initial applications for documents or for applications for extension of documents. An employer may only accept receipts for limited circumstances

Updating and Verification

Reverification requirement: Employers are required to reverify employment eligibility. When an employee's employment authorization (indicated in Section 1) or evidence of employment authorization recorded in Section 2 has expired. An employer may also reverify employment authorization, in lieu 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. The reverification requirement does not apply to the U.S. passport or "green card" (Form I-551). Note that temporary evidence of permanent resident status in the form of an unexpired foreign passport containing a temporary I-551 ADIT stamp is subject to the reverification requirement.

Reverification Process

No later than the date that employment authorization or employment authorization documentation expires, employers must reverify employment authorization on Section 3 of the I-9, or by completing a new I-9 form to be attached to the original I-9. To reverify expired status (Section 1) and/or expired work authorization document(s) (Section 2), an employee may present any currently valid List A or List C document. Remember: Receipts showing that the employee has applied for an extension of an expired employment authorization document is not an acceptable. (See Receipt Rule.)

Note: Employees are not required to present, for reverification purposes, a new version of the same document that was presented to satisfy Section 2 but subsequently expired. Any document or combination of documents that would be acceptable to demonstrate work eligibility/authorization under Section 2 may be presented for reverification purposes. It is the employee's choice as to which document to present.

Where Reverification is not Required

Permanent Resident Cards (also known as Alien Registration Receipt cards, Forms I-551, Resident Alien Cards, Permanent Resident Cards, or "Green Cards") are issued to lawful permanent residents13 and conditional resident and should not be reverified when the cards expire. Temporary evidence of permanent resident status in the form of a temporary I-551 stamp in an unexpired foreign passport is subject to reverification. This is because of the temporary nature of this document. Likewise, List B documents need not be reverified when they expire. In fact, List B documents are acceptable when initially shown, even when expired.

Rehires

Employers may reverify information of an employee rehired within 3 years of the date of the initial execution of the Form I-9 as an alternative to completing a new Form I-9. If the rehire¿s basis of employment eligibility, as listed on the retained I-9, remains the same, the employer must update the previously completed I-9. If the basis of work eligibility has expired, the employer must reverify. To update or reverify on the previously completed I-9, employers must complete Section 3 items A (name), B (date of rehire), and C (new documentation) in full, as applicable. In this section, as in Section 2, it is important that the person who actually examines the documents on behalf of the employer personally sign and date the attestation provision at the bottom of the form.

Copying of Documentation

An employer may, but is not required to, copy a document (front and back) presented by an individual solely for the purpose of complying with the I-9 verification requirements. If such a copy is made, it must be retained with the Form I-9. The copying of any such document and retention of the copy does not relieve the employer from the requirement to fully complete Section 2 of the Form I-9. If employers choose to keep copies of I-9 documentation, then it should be done for all employees, and the copies should be attached to the related I-9. Employers should not copy the documents only of individuals of certain national origin or citizenship status. To do so may constitute unlawful discrimination under section 274B of the Immigration and Nationality Act.

Interim Employment Authorization

Also note, except in the case of an initial application for employment authorization in the case of an applicant for asylum and certain applicants for adjustment of status, the Department of Homeland Security is required to adjudicate applications for employment authorization on Form I-765 within 90 days from the date of receipt of the application by the U.S. Citizenship and Immigration Services. Failure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days. Such authorization shall be subject to any conditions noted on the employment authorization document. However, if the application is denied prior to the expiration date of the interim employment authorization, the interim employment authorization document granted under this section shall automatically terminate as of the date of the adjudication and denial. See 8 C.F.R. 274a.13(d) at www.uscis.gov. In order to receive this interim employment authorization document, the individual needs to go to a local U.S. Citizenship and Immigration Services office. If the local office refuses to issue an interim employment authorization document, please contact the Office of Business Liaison.

How to Document Extensions of Stay for Certain Nonimmigrants Continuing Employment with the Same Employer

The following nonimmigrants with pending applications to extend their stay are automatically authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay: A-3s, E-1s, E-2s, G-5s, H-1s, H-2As, H-2Bs, H-3s, Is, J-1s, L-1s, O-1s, O-2s, P-1s, P-2s, P-3s, aliens having a religious occupation pursuant to 8 C.F.R. 214.2(r), and TNs. To document this extension of employment authorization on the Form I-9, any occupation pursuant to 8 C.F.R. 214.2(r), and TNs. To document this extension of employment authorization on the Form I-9, any expiration date noted in Sections 1 and 2 should be updated to clearly reflect this extension. The update should be initialed and dated.

Penalties for Prohibited Practices

EMPLOYER SANCTIONS - CIVIL MONEY PENALTIES

The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) is authorized to conduct investigations to determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and failing to properly complete, present or retain the Employment Eligibility Verification form (Form I-9) for newly hired individuals. If ICE believes that violations have occurred, ICE may issue a Warning Notice, a Technical or Procedural Failures Letter notifying the employer of technical or procedural failures in need of correction, or a Notice of Intent to Fine (NIF). In cases where a NIF is issued, employers may request a hearing within 30 days of service of the NIF to contest the NIF before an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO), Executive Office for Immigration Review, U.S. Department of Justice. Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within the 30-day period, ICE will issue a Final Order to cease and desist and to pay a civil money penalty. Once a Final Order is issued, the penalty is unappealable. If a hearing is requested, ICE will file a complaint with OCAHO to begin the administrative hearing process which may end in settlement, dismissal, or a Final Order for civil money penalties.

Hiring or Continuing to Employ Unauthorized Alien(s)

An employer found to have knowingly hired, recruited or referred for a fee, or continued to employ, an unauthorized alien for employment in the United States shall be subject to an order to cease and desist from the unlawful behavior and to pay a civil fine. An employer can be fined $250 - $2,000 per unauthorized alien with respect to whom the

• First offense occurred before September 29, 1999, and not less than $275 and not exceeding $2,200, for each unauthorized alien with respect to whom the offense occurred on or after September 29, 1999. An employer can be fined from $2,000 - $5,000 per unauthorized alien for a Second offense that occurred before September 29,1999,
• and between $2,200 - $5,500 if occurred on or after September 29, 1999. An employer can be fined from $3,000 - $10,000 per unauthorized alien for each Third or Subsequent offense that occurred before September 29, 1999, and between $3,300 - $11,000 if occurred on or after September 29, 1999.

These penalties are not limited to employees for whom employers complete and retain I-9 files, but also cover employers¿ use of contract personnel known to them to be unauthorized to work in the United States. If an employer can demonstrate compliance with Form I-9 requirements, a good faith defense with respect to a charge of knowingly hiring an unauthorized alien will have been established unless the government can prove otherwise.

Failure to Comply with Form I-9 Requirements

Employers who fail to properly complete, retain, and/or present Forms I-9 for inspection as required by law may be subject to a civil penalty for violations occurring on or after September 29, 1999 from $110 - $1,100 per employee whose Form I-9 is not properly completed, retained, and/or presented. For violations occurring before September 29, 1999, civil penalties range from $100 to $1,000. In determining the amount of the civil penalty, the following factors are considered: size of the business of the employer being charged; the good faith of the employer; the seriousness of the violation; whether or not the individual was an unauthorized alien; and the history of previous violations of the employer.

EMPLOYER SANCTIONS - CRIMINAL PENALTIES

Engaging in a Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens

Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States, after November 6, 1986, (e.g. expiration of work authorization), may be fined up to $3,000 per unauthorized employee and/or face up to 6 months of imprisonment.

Engaging in Fraud or False Statements, or Otherwise Misusing Visas, Immigration Permits, and Identity Documents

Persons who knowingly use fraudulent identification documents, identity documents that were issued to persons other than themselves, or false attestations for the purpose of satisfying the employment eligibility verification requirements, may be fined and/or imprisoned for up to 5 years.

CIVIL DOCUMENT FRAUD

It is unlawful for any person or entity knowingly to engage in any of the following activities:

• Forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of the Immigration and Nationality Act (INA) or to obtain a benefit under the INA;
• Use, attempt to use, posses, obtain, accept, or receive or to provide any forged, counterfeit, altered or falsely made document for the purpose of satisfying a requirement of the INA or to obtain a benefit under the INA;
• Use or attempt to use or to provide or attempt to provide any document lawfully issued to a person other than the possessor, including a deceased individual for the purpose of satisfying a requirement of the INA or to obtain a benefit under the INA;
• Accept or receive or to provide any document lawfully issued to or with respect to a person other than the possessor for the purpose of complying with the employment eligibility verification requirements or obtaining a benefit under the INA;
• Prepare, file, or assist another in preparing or filing, any application for benefits under the INA, or any document required under the INA, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted; or
• Present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien¿s eligibility to enter the United States, and to fail to present such document to an immigration officer upon arrival at a United States port of entry.

Unlawful Discrimination

If an Office of Special Counsel for Unfair Employment-Related Discrimination (OSC) or Equal Employment Opportunity Commission (EEOC) investigation reveals employment discrimination covered by the Immigration and Nationality Act, the employer will be ordered to cease the prohibited practice and may be ordered to take one or more of the following steps:

• Hire or reinstate, with or without back pay, individuals directly injured by the discrimination;
• Lift any restrictions on an employee¿s assignments, work shifts, or movements;
• Post notices to employees about their rights and about employers' obligations;
• Educate all personnel involved in hiring and in complying with the employer sanctions and anti-discrimination laws;
• Remove a false performance review or false warning from an employee's personnel file.

Employers may also be ordered to pay civil monetary penalties of $250 - $2,000 per individual discriminated against for the first offense, $2,000 - $5,000 per individual discriminated against for the second offense, $3,000 - $10,000 per individual discriminated against for subsequent offenses.

DOCUMENT ABUSE

Where employers are found to have requested more or different documents than an employee has chosen to present from List A or Lists B and C, they may be fined $100 - $1,000 for each individual determined to have suffered such document abuse.