The I-9 form is mandated by law. Its purpose is to verify the identity and employment authorization of a new employee. The I-9 form must be completed for every new hire and is the responsibility of the employer to ensure it is properly completed and backed by viable documentation. Even though the new employee must fill out parts of the form and provide the necessary documentation, it’s essential that employers have efficient processes in place to prevent missed deadlines, missing documentation or I-9 errors. Any of the three can result in severe financial penalties, or even legal action in some cases.
Though essential to proving the employee’s work authorization, I-9 forms and the process associated with them are cumbersome to most employees and employers alike. There are stringent deadlines in place that must be complied with, all provided documentation must be physically examined and verified, the documentation and I-9 form must be properly stored (and eliminated after a certain amount of time) and the I-9 form must be signed and dated.
As soon as a new hire accepts an offered job, employers can begin the I-9 process. There are three sections to the form, including:
Employee information and attestation. This section must be completed by the employee and done so no later than the first day of employment. Ideally, it would be completed before then to give the employer ample time to verify identifying documentation.
Employer or authorized representative review and verification. This section must be completed by the employer and done so within three business days of the employee’s first day of employment.
Reverification and rehires. When an employer rehires an employee three years after the I-9 was originally completed, or if employment authorization is set to expire while the employee is still working for the employer, this section will need to be completed to remain I-9 compliant. Alternatively, the employer may choose to complete a new I-9 in the case of rehires.
These deadlines are not negotiable and failing to meet them will result in fines in the event of an I-9 audit. When the employee fills out their part of the I-9 form, they must be given the form’s instructions. This protects the employee’s right to nondiscrimination and ensures they understand their right to a translator and understand that any provided information is legally binding.
• The employee provides their personal information – Before any identifying or work authorization documentation changes hands, the employee must complete Section 1 with their basic personal information. This includes name (first, last, middle initial, as well as any other names used), address, date of birth, U.S. social security number (this is voluntary, unless the employer participates in E-Verify), e-mail address and telephone number (optional, though it allows the Department of Homeland Security to contact the employee should conflicting information be provided).
• The employee attests to their citizenship or immigration status – Employees have four options here. They are either a U.S. citizen, a noncitizen national of the U.S., a lawful permanent resident or an alien authorized to work. The specifics of what constitutes each status is listed in the instructions provided with the I-9 form. Employees attest to their citizenship or immigration status under penalty of law.
• If a translator or preparer assisted the employee, the preparer or translator certification section must be filled out – This is part of Section 1 and is relevant if another party was required to help the employee understand the form’s instructions, or if another party was required to fill out any information fields.
• The employee signs and dates Section 1 – Without a date and signature, the I-9 form is invalid. By signing and dating the form, the employee is, under penalty of law, asserting that all of the information they have provided is true.
• The employee provides the employer with identification and work authorization documentation – This documentation must be provided to the employer before the employer can complete Section 2 of the I-9 form. Employees have many options in verifying their identity and work authorization, and the list of acceptable documents is provided below.
• The employer examines and verifies any provided documentation – Employers are to examine each document and verify that the document appears to be genuine. The person responsible for examining the documents must be the same person who completes Section 2, and the employee must be present during examination.
• The employer records relevant details associated with the documentation – In Section 2, the employer must record the document title, the issuing authority, document number and expiration date. If the employee is a student or exchange visitor who has provided a foreign passport with a Form I-94, the employer must also record the employee’s Form I-20 or DS-2019 number, as well as the program’s end date from the same form.
• The employer signs and dates Section 2 – Under the certification field, the employer must list the employee’s first day of employment. The name and title of the person responsible for completing Section 2 must also be provided, as well a signature and date detailing when Section 2 was completed. The employer’s business name and address should also be provided here.
• The employer gives the documentation back to the employee – The employer may choose to photocopy any documentation, but whether they choose to do so or not, the original documents must be returned to the employee. If photocopies are made, keep in mind that this must be done for all employees rather than only one employee.
• Complete Section 3 in the event of a rehire or reverification – As mentioned above, if the employee is being rehired after three years following the original I-9 form’s completion, or if their work authorization is approaching expiration, Section 3 can be completed to ensure the employee’s ongoing work status.
The federal government dictates which documents are acceptable for either identification or work authorization purposes. With the exception of a certified birth certificate copy, all submitted documentation must be unexpired and original.
The list of acceptable documents is broken down into three groups. They are as follows:
List A – Documents that establish both identity and work authorization. These documents include:
• U.S. Passport or U.S. Passport Card.
• Permanent Resident Card or Alien Registration Receipt Card (Form I-551).
• Foreign passport that contains a temporary I-551 stamp or I-551 printed notation on a machine-readable immigrant visa.
• Employment Authorization Document that contains a photograph.
• Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.
• If the employee is a nonimmigrant alien authorized to work for a specific employer because of his or her status – the employee may provide a foreign passport and a Form I-94 or Form I-94A that has the same name as the passport or an endorsement of the alien’s nonimmigrant status if that period of endorsement has not yet expired.
List B – Documents that establish identity only. These documents include:
• Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address.
• ID card issued by federal, state or local government agencies, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address.
• School ID card with a photograph.
• Voter’s registration card.
• S. Military card or draft record.
• Military dependent’s ID card.
• S. Coast Guard Merchant Mariner card.
• Native American tribal document.
• Driver’s license issued by a Canadian government authority.
For people under 18 years of age who are unable to provide the above – These employees may provide a school record or report card, a clinic, doctor or hospital record or a daycare or nursery school record.
List C – Documents that establish work authorization only. These documents include:
• A Social Security Account Number card, unless the card includes an employment restriction.
• Certification of Birth Abroad issued by the Department of State (Form FS-545).
• Certification of Report of Birth issued by the Department of State (Form DS-1350).
• Original or certified copy of birth certificate issued by a state, county, municipal authority or territory of the United States bearing an official seal.
• Native American tribal document.
• S. Citizen ID Card (Form I-197).
• Identification Card for Use of Resident Citizen in the United States (Form I-179).
• Employment authorization document issued by the Department of Homeland Security.
Employees must either provide a single document from List A, or one document from List B and one document from List C.
Again, it is critical that all Form I-9 procedures are followed to the letter. Any violations may risk the business or the employee’s employment status, as well as raise the potential for legal consequences. This is more important than ever, as I-9 audits are much more routine than they were just five years ago. Understand the process, set up efficient methods for handling it and seek assistance from knowledgeable experts if any confusion remains.
