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What is the I-9 employment verification process, and what are the employer’s responsibilities when completing it?

By June 30, 2022Immigration
employer verification

When an employer hires an employee in the United States, the employer is immediately required to verify the employee’s identity and work eligibility by completing the Form I-9 employment verification process. In this post, we provide an overview of the I-9 employment verification process for those employers that are not participating in the E-Verify program, and answer several commonly asked questions.

What is the Form I-9, and why is it necessary?

The Form I-9 employment verification process was largely born out of a law passed by Congress in 1986, called the Immigration Reform and Control Act, or IRCA. The main focus of IRCA was to prohibit the employment of individuals who are in the U.S. and who do not have permission to work.

One of the key ways in which IRCA limited the employment of such individuals was to require employers to verify that the people they hire are authorized to work, and to impose penalties on employers who either fail to do so, or who otherwise employ individuals who are not authorized to work in the U.S.

The main way that an employer verifies that an individual is authorized to work in the U.S. is to complete the USCIS Form I-9, Employment Eligibility Verification, for each and every person the employer hires. The process, in general, consists of the employee providing to the employer documents that prove 1) the employee’s identity, and 2) that they are authorized to work in the United States.

When must the employer complete the Form I-9?

The employer must ensure that all parts of Section 1 of the Form I-9 are completed by the employee no later than the employee’s first day of employment – this includes making sure that Section 1 is signed and dated by the employee. An employee starts employment when the employee starts providing labor or services in exchange for compensation. Compensation can be in the form of receiving money, but it can also be any other form of remuneration in exchange for labor or services that the employee provides, such as food or housing. The employer should not ask the employee to complete the Form I-9 before the employee has accepted the job offer.

The employer must review the employee’s documents within 3 business days of the employee being hired. For example, if the employee starts performing work in exchange for compensation on Monday, the employer should ensure that the employee completes Section 1 before the employee leaves work on Monday. The employer should review the employee’s Section 2 documents by Thursday of the week the employee starts work, assuming they started on Monday.

For employees who are hired for fewer than three days, the employer must make sure that both Section 1 and Section 2 of the Form I-9 are completed no later than the end of the employee’s first day of employment.

A person who was born in the U.S. and is a U.S. citizen applied to work for my company. Do I need to complete the I-9 process for U.S. citizens too?

Yes. The employer must complete the I-9 employment verification process for every employee, regardless of their citizenship or country of origin.

Is anyone not considered to be an employee? In other words, are there any workers for whom the employer does not need to complete the I-9 employment verification process?

Yes, there are several categories of workers for whom the employer does not need to complete the I-9 verification process. Specifically, the employer does not need to complete the I-9 employment verification process for unpaid volunteers, independent contractors, workers who provide sporadic or intermittent services in a private home, or workers assigned through temporary employment agencies (since the temporary employment agency would be the worker’s employer, and would therefore need to complete the Form I-9).

What are the employer’s responsibilities when completing the Form I-9?

The employer has a number of responsibilities when completing the Form I-9 employment verification. It is the employer’s responsibility to ensure that, before the end of the employee’s first day of paid work, the employee completes Section 1 of the Form I-9. This includes making sure that the employee signs the form and the attestation that they are providing the requested information under penalty of perjury. If the employee refuses to sign the form, the employer should not continue to employ the employee.

It is also the employer’s responsibility to personally review the original documents that the employee provides in response to Section 2 of the Form I-9. The employer must review the documents in the employee’s presence within three business days of the employee’s start of employment, and must list on the Form I-9 the documents that the employee provides to verify her identity and eligibility to work.

The acceptable documents are listed on the Form I-9, and are organized into three lists: List A, which proves both the person’s identity and their eligibility to work (a U.S. passport, for example); List B, which proves only a person’s identity (such as a state-issued driver’s license); and List C, which proves only a person’s eligibility to work (such as an employment authorization document, or EAD, issued by the Department of Homeland Security). An employee must provide either one List A document, or both a List B and List C document.

If the employer is satisfied that the documents the employee provides are genuine and show both their identity and eligibility to work, the employer should review the Form I-9 to make sure that the entire form is properly completed, then sign and date the bottom of Section 2. The person who actually looked at the employee’s documents should sign this section, and they should list the date on which they are actually completing the form.

It is also important to remember that, if the employer designates an agent to assist with the I-9 verification process, the employer can be liable for any violations committed by the designee.

Can I keep a copy of the documents the employee provided, for the company’s records?

Yes, the employer is allowed to keep copies of the documents the employee provides. The employer is not required to keep copies, though. Also, if the employer chooses to make copies of the employee’s documents, they need to do so for all employees – if the employer adopts different practices for different employees, this could expose the employer to liability for discrimination.

The employee provided a document that I have never seen before. Do I need to take any steps to make sure it’s legitimate?

The employer’s responsibility is to accept documents that “reasonably appear” to be authentic, and that reasonably appear to have been issued to the employee. For example, the employer should compare the name listed on the identity document (List B) and the name listed on the employment eligibility document, and should confirm that the person photographed in the document looks like the person who was hired.

If the employer thinks that a document is fake or fraudulent, they can ask the employee to provide other documents. If the employee is not able to do so, the employer should terminate the employee.

The employee provided a document that is expired. Can I accept it?

In general, the employer cannot accept any expired documents. This rule does not apply to a U.S. passport or any documents that appear on List B – an employer can accept an expired U.S. passport, or an expired document that is listed on List B.

The employee provided a copy of a document instead of the original. Is this okay?

No. The employee must provide original documents showing their identity and eligibility to work in the United States. One exception to this rule is that a certified copy of a U.S. birth certificate is acceptable under List C.

The employer gave me a receipt showing that they applied for a document, but they didn’t have the document itself. Is this acceptable?

If the employee provided a receipt showing that they submitted an initial application for a document, or that they applied to extend the validity of a document, this is not acceptable. For example, a receipt showing that the employee has applied for an initial employment authorization document (EAD) is not acceptable.

However, a receipt is acceptable to show that the employee applied to replace a document that was lost, stolen, or damaged. The employee must present the actual document within 90 days of being hired.

In certain circumstances and depending on other documentation provided, a receipt may also be acceptable when an individual has refugee status or is a lawful permanent resident.

The employee did not list their Social Security number in Section 1. What should I do?

The employee has the option to provide their Social Security number, but is not required to do so if the employer does not participate in the E-Verify program. The employer is not allowed to require that the employee provide their Social Security number.

Can the employer specify which of the documents listed on the Form I-9 it prefers, or must the employer accept any of the documents listed on the Form?

The employee is entitled to provide any of the documents listed in Section 2 of the Form I-9 that she chooses. The employer must defer to the employee’s choice and, as long as the documents the employee provides are acceptable, the employer cannot require different or additional documents than the employee chooses to provide. The employer also cannot refuse to accept documents provided by the employee that appear to be genuine and appear to identify the employee.

Regarding Section 1, which the employee must complete, the employer cannot require that the employee provide any documents to prove the information the employee provides in Section 1 of the Form I-9.

The employer should be careful to comply with these requirements – failure to do so could cause the employer to be liable for discrimination against the employee.

An employee’s work authorization document is currently valid, but will be expiring soon. Can I use this information when deciding whether to hire or terminate her?

No. When deciding whether to hire or terminate an employee, the employer cannot take into account the future expiration dates of a work authorization document. In other words, if the document provided is listed as an acceptable document on the Form I-9 and is valid and not expired, it cannot form a basis to hire or terminate the employee.

How long does the employer need to keep the Form I-9?

The employer needs to keep the I-9 form for each employee for the longer of either 1) three years after the date the employee was hired, or 2) one year after the employee’s employment is terminated.

For example, Belinda was hired by an employer and worked for one month before she was terminated. The employer would be required to keep her Form I-9 for three years from the date of hiring, since this date would be later than one year from her date of being hired.

In contrast, Thomas was hired by an employer and worked there for four years before his employment was terminated. The employer would need to retain his Form I-9 for one year after termination, since that date is later than three years after the date Thomas was hired.

I completed a Form I-9 for an employee, but now I can’t find it. What should I do?

As soon as the employer learns that they are missing an I-9 form, they should ask the employee to complete Section 1 of the Form, with supporting documentation showing their identity and eligibility to work (as required in Section 2). The employer should be sure that the form is dated on the date that the form is actually completed.

I have just learned that an employee I have been employing provided false documents. What should I do?

An employer that learns that an employee has been working without work authorization should first give the employee the opportunity to complete a new Form I-9, with documents showing their eligibility to work. If the employee is unable to do so, the employer should be aware that the government may impose penalties on the employer if the employer “knowingly” continues to employ an individual who is not authorized to work in the United States.

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