When an employee is hired in the United States, one of the first things they will be asked to do by the employer is to complete the Form I-9, Employment Eligibility Verification. This is an important process that creates a number of requirements and obligations on both the employer and employee.
In a separate post, we focused on the employer’s responsibilities when completing the Form I-9 employment verification process. In this post, we focus on the requirements that the process places on the employee. This post discusses the employment verification requirements and process when the employer does not participate in the E-Verify program.
What is the Form I-9, and why is it necessary?
The Form I-9 employment verification process came out of a law passed by Congress in 1986, called the Immigration Reform and Control Act, or IRCA. IRCA was focused on preventing unauthorized work. As a result, one of its goals was to make sure that only those with work authorization are allowed to work in the U.S.
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 actually authorized to work. IRCA imposed penalties on employers that either fail to verify an employee’s eligibility to work, or that 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 should my employer ask that I complete the Form I-9?
Your employer must ensure that all parts of Section 1 of the Form I-9 are completed by you no later than your first day of employment. You are considered to have started employment when you start providing labor or services in exchange for compensation. Compensation can mean money, but it can also be any other form of remuneration in exchange for labor or services that you provide, such as food or housing. Your employer should not ask you to complete the Form I-9 before you have accepted the job offer.
Within three business days of your first day of work, the employer must review the documents you provide in response to Section 2 of the Form I-9. These documents prove both your identity and your eligibility to work. For example, if your first day of work is Monday, your employer should make sure that you have completed Section 1 before you leave work on Monday. Your employer should review the documents you provide in response to Section 2 before Thursday of the week you started work, assuming you started on Monday.
If you are hired to work for fewer than three days, your employer must review both Section 1 and Section 2 by the end of your first day of employment.
I was born in the U.S. and am a U.S. citizen. Can my employer ask me to complete a Form I-9?
Yes. The Form I-9 is required 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 that do not need to complete the I-9 verification process, including unpaid volunteers, independent contractors, and workers who provide sporadic or intermittent services in a private home.
What are the employee’s responsibilities when completing the Form I-9?
As the employee, you are responsible for completing Section 1 of the Form I-9, which asks you to confirm your status in the United States as either a U.S. citizen, a noncitizen national of the United States, a lawful permanent resident, or a nonimmigrant that is authorized to work until a specific date (such as an H-1B or TN visa holder).
A few notes on Section 1. First, unless the employer participates in the E-Verify program, you are not required to provide your Social Security number. Also, you are not required to provide to your employer documentation that proves your selection in response to Section 1 – instead, the documents you are required to provide are specified in Section 2 of the Form I-9, not on Section 1.
After completing Section 1, you must sign and date the section. You are required to date the document with the date you actually sign it. Remember that signing the form means that all of the information you provided is true and accurate, to the best of your knowledge. You expose yourself to perjury charges if you knowingly provide false information or documents in response to the form.
If you use a preparer or translator to help you complete the Form I-9, you are still required to sign Section 1. The preparer or translator would also sign Section 1 in the specific section.
Your employer will review Section 1 by the end of your first day of employment. If you provide incomplete information or do not sign Section 1, the employer should ask you to address these issues.
You, as the employee, are also required to provide to your employer, within three days of starting employment, documents that prove your identity and eligibility to work in the United States. 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). You, as the employee, must provide either one List A document, or both a List B and List C document. If you provide a List A document, you do not need to also provide a List B or List C document. Similarly, if you provide a List B and List C document, you do not also need to provide a List A document.
It is up to you which documents you provide to the employer – as long as the documents you provide are on the list of acceptable documents on the Form I-9 and “reasonably appear” to be authentic, your employer cannot require that you provide more or different documents.
Your employer is required to review the documents you provide in your presence within three days of your first day of paid employment. Your employer will then list on Section 2 of the Form I-9 the documents that you provided in order to verify her identity and eligibility to work. Unlike Section 1, which must be signed by the employee, Section 2 must be signed by the employer or their authorized representative. Section 2 must be signed by the person who actually reviewed your documents.
One of my documents is a copy – I can’t find the original. Is this okay?
No. You, as the employee, must provide original documents showing your identity and eligibility to work in the United States. The one exception to this rule is that you can provide a certified copy of a U.S. birth certificate under List C.
Can my employer make a copy of the documents I provided?
Yes, the employer is allowed to keep copies of the documents you provided, but they are not required to do so. Also, the employer needs to adopt the same practice for all employees – so if they made copies of one employee’s documents, they should make copies of all employees’ documents. Your employer must return the original documents to you.
My employer didn’t believe that one of the documents I provided is authentic. Are they allowed to reject it?
Your employer must accept documents that “reasonably appear” to be authentic, and that reasonably appear to have been issued to you. For example, they 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 you, as the employee.
If your employer thinks that a document you provided is fake or fraudulent, they should ask you to provide other documents listed as acceptable on the Form I-9.
One of the documents I plan to provide is expired. Will my employer 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.
I applied for an employment authorization document (EAD) but haven’t received it yet. Will my employer accept my receipt notice instead of the actual EAD?
No, a receipt showing that you have applied for an initial employment authorization document (EAD) is not acceptable. A receipt is not acceptable evidence if it shows that you submitted an initial application for a document, or that you applied to extend the validity of a document.
However, a receipt is acceptable to show that you applied to replace a document that was lost, stolen, or damaged. You, as 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 if you, as the employee, have refugee status or are a lawful permanent resident.
My work authorization document is currently valid, but will be expiring soon. Will this be a problem when I complete the Form I-9?
Your employer cannot take into account the future expiration date 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 for the employer to hire or terminate you.
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