Author: Melissa A. Silver, XpertHR Legal Editor
In order to comply with the Immigration Reform and Control Act (IRCA) employers must verify the identity of their employees and that the employees are authorized to work in the US. As such, employers and employees are required to fill out an Employment Eligibility Verification Form (Form I-9). Therefore, employers should follow the steps below when verifying an employee's eligibility to work during the Form I-9 process.
Step 1: Understand the Requirements of IRCA
Under the IRCA, if an employer knowingly hires or continues to employ an unauthorized worker, it can be exposed to civil and criminal penalties. The IRCA applies to all entities, large and small, corporate and individual, regardless of the number of employees in the employer's workforce.
Employers should understand that the IRCA makes it unlawful for an employer to:
- Hire anyone for employment in the US without first examining documents that establish the individual's identity and eligibility to work; and
- Hire or to recruit or refer for a fee, for employment in the US a foreign national, if the employer knows the foreign national is not authorized to work.
Step 2: Be Acquainted With the Form I-9
The purpose of the Form I-9 is for employers to document that their workforce is authorized to work in the US. The Form I-9 consists of three sections:
Section 1. In this section, the employee attests, under penalty of perjury, that he or she is a citizen, lawful permanent resident, or foreign national authorized to work temporarily. This section must be completed on or before the employee's first day of work.
Section 2. In the second section, employers are required to record that they have examined original documents from a specified list verifying the employee's identity and eligibility to work. Employers must accept the documents if they appear reasonably genuine and relate to the person presenting the documents. This section must be completed and signed by the employer within three days of the employee's start date.
Employers must be aware that they cannot request employment authorization documents from an applicant before hiring or before the Form I-9 is completed. Further, employers cannot include the Form I-9 in the job application packet.
Section 3. The third section is used only if the employer needs to reverify an employee's work authorization status. Section 3 may also be completed if an employee is rehired within three years of the date that Form I-9 was originally completed.
Best Practice. Since the Form I-9 is now a two-page document, employers should print the form double-sided to ensure that both pages remain together at all times during the Form I-9 process and for filing and retention purposes.
Step 3: Determine Who Needs to Complete the Form I-9
In general, the Form I-9 must be completed for each employee hired after November 6, 1986 and for employees who left employment and are rehired more than three years after the original hire date.
Mergers or Acquisitions. In the event of a merger or acquisition, the employer can either do one of the following:
- Require all acquired employees to complete a new Form I-9; or
- Retain the Form I-9 from the previous employer and review each one.
If an employer treats the acquired employees as new hires, employers should enter the effective date of the merger or acquisition as the date each employee began employment in Section 2 of the Form I-9.
If the successor employer retains the I-9 forms from the previous employer it is accepting responsibility for those forms. Therefore, if there are any errors on those forms, the new employer will be held accountable for those errors. As such, employers should instruct those employees in charge of the Form I-9 process to review each Form I-9 with each acquired employee and update or reverify the employee's information, as necessary.
Successor employers must ensure that whatever method they chose that it is applied uniformly for all newly acquired employees.
Employees Who Do Not Need to Complete the Form I-9. Employers do not have to engage in the Form I-9 process with the following types of employees:
- Individuals hired for domestic employment that is sporadic, irregular, or intermittent;
- Independent contractors, but if the employer has knowledge that the independent contractor is not authorized to work in the US, the employer cannot continue using the independent contractor's services;
- Employees of contractors that are providing contract services;
- B-1 domestic servants;
- B-1 trainees on short term training programs;
- Employees hired before November 7, 1986, unless continuity of employment is broken; and
- Individuals who are not working physically in the US. The US refers to all 50 states, Washington, D.C., Guam, Puerto Rico, US Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
Step 4: Have the New Employee Complete Section 1 of the Form I-9
Once a candidate has been offered a position, an employer can send the new hire the Form I-9 to be completed. Employers must send the new hire the instructions as well as the Lists of Acceptable Documents with the Form I-9. Employees can complete the Form I-9 as early as acceptance of the job offer, but it must be completed no later than the first business day of employment for pay.
Section 1 requires that the employee provide his or her full legal name; maiden name if applicable; current address (PO Boxes are not permitted); date of birth; Social Security number (however this is voluntary unless the employer uses E-Verify), citizenship or employment-authorized immigration status, also the individual's alien or admission number (if applicable), as well as the date the employment authorization expiration; and the employee's signature. If the employee has a preparer or translator helping him or her complete the Form I-9, the preparer or translator must also provide his or her name, address, and signature, and date the form.
The Form I-9 also contains an email address and telephone number field. However, it is voluntary for an employee to provide this information. If the employee chooses not to provide the information he or she can write N/A.
Further, employers should not pre-populate (prefill) an employee's information in Section 1 of the form. By pre-populating the information, the employer increases its risk of using outdated or inaccurate information, which could affect E-Verify results.
To verify his or her eligibility for employment, employees must produce documents that establish both his and her identity and eligibility to work in the US. A Social Security card and a birth certificate are sufficient to establish the new employee's authorization for employment. A driver's license or other state issued identification card is sufficient to establish the new employee's identity.
There are several documents that will establish both the authorization for employment and identification categories, such as, a US passport, certificate of US citizenship, certificate of naturalization, certain resident-alien cards, an unexpired foreign passport with attached visa authorizing employment in the US, or alien registration card with photo. Deferred action recipients who obtain work authorization are issued an Employment Authorization Document (EAD). An EAD establishes both identity and employment authorization.
The full list of documents that an employee can provide to establish his or her identity and employment authorization is set forth in the Lists of Acceptable Documents, which is part of the Form I-9.
Step 5: Complete Section 2 of the Form I-9
Information Required. Section 2 of the Form I-9 requires employers to enter in certain dates. In particular, the employer or the employer's representative must enter the date the employee began or will begin work for pay. Temporary staffing agencies may provide the first day the employee was entered in the job pool as the first day of employment. The Form I-9 also requires that the employer provide the name, signature and title of the person completing Section 2, as well as the date he or she completed Section 2. Further, employers must enter the employee's name on the top of the second page of the form.
The employer must also provide the employer's business name and address in Section 2. If the employer has multiple locations, the local address where the Form I-9 is completed can be provided if it is the most suitable address to use to identify the location of the employer.
Review Documents Provided. Employers cannot demand specific documentation from the employee verifying his or her eligibility of employment. When the employee provides the required documentation, employers or their designated representative must physically examine the documents in the employee's presence and write the date on the Form I-9 that the employer examined the documents. Employers should only accept documentation presented by the employee if it appears to be genuine and relates to the individual presenting it. However, employers are not required to be fraudulent document experts.
Employers must ensure that they only accept original unexpired documents. The only time an employer may accept photocopies is if the document is a certified copy of a birth certificate.
E-Verify Employers. If the employer participates in E-Verify, then it can only accept List B documents that contain a photograph.
Receipts. Employers may be confronted with a situation with an employee who does not have the required documents for various reasons, such as if the documents were lost, stolen or damaged. In those instances an employee may submit a receipt from the originating agency demonstrating that he or she has applied for a replacement document and has up to 90 days to submit the replacement document. The receipt must be for a replacement document that evidences existing employment authorization.
Other types of acceptable receipts are the arrival portion of the Form I-94/I-94A with a temporary I-551 stamp and a photograph of the individual and the departure portion of the Form I-94/I-94A with refugee admission stamp. If the employee provides the arrival portion Form I-94/I-94A with a temporary I-551 stamp and photograph, he or she must present the actual permanent resident card (Form I-551) by the expiration of the temporary stamp, or if there is no expiration date one year from the date it was issued. If the employee provides the departure portion of the Form I-94/I-94A with refugee admission stamp then the employee must present an Employee Authorization Document Form I-766 or a combination of a List B document and an unrestricted Social Security card within 90 days.
Record the Documents. After reviewing the documents provided by the employee, employers must record the titles of each document, the issuing authority, document number and expiration date, if applicable. If the employer has hired an employee who is a student or exchange visitor and he or she presents a foreign passport with a Form I-94, the employer should also include the student's Form I-20 or DS-2019 number (Student and Exchange Visitor Number) and the program end date from those documents.
If an employee has presented a receipt, employers must record the receipt under the applicable section under Section 2 and write the word "receipt" and its document number in the appropriate field. Once the employee provides the replacement document, employers should cross out the word "receipt" and its corresponding document number and record the document number and information from the document presented. Employers should then initial and date the change.
Minors. If an employer hires a minor (individual under 18 years of age) who does not have a List B document, the employer then enters the minor's name on the top of Section 2, writes the words "Individual under 18" under List B and enters the information from the document presented under List C. As with employees of age, employers need to enter the date that the minor begins work for pay, the employer must attest to physically examining the documents, sign and date Section 2, and enter its business name and address.
Copies of Documents. The employer may, but is not required to, copy the employee's documents. If it is the policy of the employer to copy the documents, the policy should be applied uniformly and consistently with all employees. Only copying documents of employees of certain nationalities or citizenship may subject an employer to an unfair immigration related employment practice charge. The original documents must be returned to the employee.
Review Signatures. Employers must ensure that Section 1 is signed and dated by the employee. If the employee used a preparer or translator while completing the Form I-9, employers must review the preparer/translator section to ensure that it is completed, signed and dated.
Timing. Employers must complete Section 2 of the Form I-9 within three business days of the employee's first day of work for pay. If an employer operates during the weekend, then those days count toward the three day time frame. However, if an employee is hired to work for less than three business days, employers must complete Section 2 on the new hire's first day of employment.
Designated Representative. An employer is not required to fill out the Form I-9 itself and instead may designate an individual to complete the form, such as a personnel officer, foreman or agent. An employer may also designate a notary public to act on its behalf. The designated individual is required to complete all of the necessary paperwork, including signing the form.
There are times when employers may need to enter into contracts with other individuals or businesses to verify employees' eligibility for employment and to complete the Form I-9 for the employer, such as if the employer is hiring an employee to work remotely who lives in another location.
Employers must be cautious when designating an individual or if they enter into a contract for another individual or business to verify an employee's eligibility for employment because the employer remains liable for any Form I-9 violations.
Signatures. Employers must sign and date the attestation on the same day Section 2 is completed. If an employer uses an electronic system, the system should include a method to acknowledge that they read the attestation signed and the electronic signature must be attached to the completed electronic Form I-9.
Step 6: Complete Section 3 of the Form I-9
Reverification. If an employee's work authorization expires or the DHS informs the employer that authorization is not sufficient, the employer must reverify the employee by completing Section 3 of the Form I-9. Reverification is not for US citizens, noncitizens nationals, and lawful permanent residents who presented a permanent resident card (Form I-551). Further, the following documents do not need to be reverified: an expired US passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card, or a List B Document that has expired. Further, unrestricted Social Security cards given to refugees and asylees are not subject to the reverification process.
While it is not necessary to reverify a lawful permanent resident's, or green card holder status upon expiration of the permanent residence card, the employer must reverify a temporary stamp evidencing permanent resident status placed in a passport. Employers can reverify directly on the existing Form I-9 by noting the document's identification number and expiration dates in Section 3 or it may complete a new Form I-9. Further, employers must reverify employment prior to the expiration date indicated in Section 1 of the Form I-9.
Continuing Employment. The employer does not need to reverify an employee's authorization if he or she is continuing in employment and has a reasonable expectation of employment at all times. Continuing employment includes:
- Leave related to a normal employment relationship such as illness, vacation, maternity or paternity leave, union business or other temporary leave approved by the employer;
- Promotion, demotion, layoff, or strike;
- Reinstatement after wrongful discharge;
- Transfer from one distinct unit of the employer to another unit of the employer;
- The employee continuing employment for a related, merged, successor or reorganized employer or same employer at different location;
- The employee's work in the same bargaining unit for another employer in a multi-employer association;
- An individual engaged in seasonal employment; or
- Employees in a certain visa status, such as: A-3, E-1/E-2, G-5, H-1, H-2, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R, or TN status.
Timing. Reverification must occur no later than when the employee's employment authorization or employment authorization document expires, whichever event happens first.
Rehires. An employer may also complete Section 3 of the Form I-9 if an employee is rehired within three years of the date that Form I-9 was originally completed or complete a new Form I-9 instead.
Name Change. If an employee changes his or her name, the employer must indicate the name change in Section 3 if the employee needs to be reverified or if the employee is rehired within three years of the date of completion of the original Form I-9. If an employer learns of an employee's name change at a time other than during reverification or when the employee is rehired it is recommended that employers enter the new name in Section 3 of the Form I-9 so that the employer has an accurate record. If the employer is reviewing documents in the reverification process it should confirm that the document presented with the new name appears to be genuine and relates to the employee presenting it. However, in general employers should be proactive and ask employees for the reason and any documentation supporting the name change, as well as document this in the event of a government inspection.
Employee Identity Issues. The employer should complete a new Form I-9 if it discovers that its employee has been working under a false identity and has subsequently obtained work authorization immigration status under his or her actual identity and he or she wants to update his or her employment records. When completing the new form, the employer should enter the original hire date in Section 2 of the form and attach the new form to the old form. Employers should also draft a memo documenting the reason for completing the new form. If a new Form I-9 is completed and the employer is an E-Verify participating employer, then it should verify the new information through E-Verify.
An employer is not required to terminate the employee's employment if he or she was working under a false identity, but is now currently work authorized. Nonetheless, employers should consult with their internal policies, other applicable laws or contractual obligations, which may require termination of that individual's employment for being dishonest about his or her identity.
Deferred Action Recipients. Section 3 should be completed if the information provided in Section 1 has not changed, but the employee shows the employer a new EAD. Employers should use the most current version of the Form I-9 when completing Section 3 and attach it to the previously completed Form I-9. However, if a current employee who is a deferred action recipient presents updated information that changes the employee's name, date of birth, attestation or Social Security number, then a new Form I-9 must be completed. If a new Form I-9 is completed and the employer is an E-Verify participating employer, then it should verify the new information through E-Verify.
Step 7: Avoid Discrimination in the Form I-9 Process
Employers must avoid discrimination in the Form I-9 process. Therefore, employers should do the following:
- Closely follow the directions mandated on the Form I-9. Do not request any additional information or documents beyond what is mandated on the Form I-9.
- Allow employees to choose which of the approved documents the employee will use in completing the Form I-9. Do not mandate that any particular document be presented by the employee.
- Wait until after the prospective employee has accepted the employment offer before verifying the new hire's eligibility for work or requesting completion of the Form I-9.
- Train employees involved in the Form I-9 process not to refuse to hire a prospective employee because he or she presented documentation with a future expiration date.
- Avoid making hiring, retention, or termination decisions on the basis of actual or perceived citizenship status, national origin, or the employee's native language.
Step 8: Retain and Store I-9 Forms
Duration. Employers are not required to file the Form I-9 with the government, but must retain the Form I-9 for each employee throughout his or her period of employment. I-9 forms must be stored for three years after the date an employee was hired or one year after the date employment is terminated, whichever is later.
The forms must be stored separately from personnel records for ease of internal auditing and ease of retrieval in the case of a government audit or inspection.
Internal Filing. Form I-9s should be filed and maintained in three groups: terminated employees, current employees, and employees that need to be reverified. Since the Form I-9 contains personal sensitive information of each employee, employers should have safeguards in place to maintain the confidentiality of these documents. One way to accomplish this is to only allow HR access to these documents.
Format. The Form I-9 may be stored in its original form, microfilm, microfiche, or electronically. If the Form I-9 is retained electronically, employers must comply with 8 CFR Part 274a.2, which requires that the electronic storage system include the following:
- Reasonable controls to ensure the integrity, accuracy and reliability of the electronic generation or storage system;
- Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature if used;
- An inspection and quality assurance program evidenced by regular evaluations of the electronic generation or storage system, including periodic checks of the electronically stored Form I-9, including the electronic signature if used;
- In the case of electronically retained Forms I-9, a retrieval system that includes an indexing system that permits searches; and
- The ability to reproduce legible and readable hardcopies.
Step 9: Establish Form I-9 Policies, Procedures and Training
In order to ensure compliance with the IRCA and the Form I-9 requirements, employers should establish uniform policies such as the following:
- Whether to copy supporting documents;
- Storage of I-9 forms;
- Addressing credible reports of suspected unlawful employment and/or fraudulent identity; and
- Retention and purging.
Employers should also create standard operating procedures and policies to be followed in the event law enforcement or a government official seeks access to the employer's premises, files or personnel.
All personnel involved in employee hiring should be trained on the Form I-9 process as well as the employer's policies and procedures to ensure a consistent level of knowledge of compliance obligations.
Step 10: Conduct Internal Audits
At least annually, all employers should conduct regular internal audits to ensure compliance with employee verification and Form I-9 requirements. Employers should also track the expiration dates for employees with temporary work status and ensure timely reverification of expiring work authorization.
Discovering Mistakes. If during an audit it is discovered that a Form I-9 has mistakes in either Section 2 or 3 then an employer can make corrections. However, if an error is discovered in Section 1 of the form, the employer should ask the employee to fix the mistake by doing the following: drawing a line over the incorrect information, inserting the correct information, and initialing and dating the correction.
If multiple corrections are made to the form, it is a best practice for employers to complete the section again on a new form and attach the new form to the old one.
If corrections need to be made to the Form I-9 or if an employer needs to complete a new form, it should attach a note in the file why the changes needed to be made.
Employers should not conceal any changes to the Form I-9, even if the employer was fixing a mistake. If the employer tries to hide the changes made, it could expose itself to potential liability.
Discovering Missing I-9 Forms. Similarly, if an audit reveals that a Form I-9 is missing for an employee then the employer should provide another Form I-9 to the employee to be completed. Employers should not back date the new Form I-9. Instead, employers should draft a memorandum to be placed in the employee's file explaining why a new Form I-9 needed to be completed.