I-9 Form Fundamentals

Given today’s heightened enforcement climate, now is a good time to revisit the basics of the I-9 form and its origins.

The Immigration Reform and Control Act of 1986 (IRCA) introduced a requirement for employers to verify the identity and work authorization of their employees. This law made it illegal for businesses to knowingly hire or continue employing unauthorized workers and introduced civil and criminal penalties for non-compliance. The goal was to ensure that employers played a role in maintaining a legal workforce, thereby discouraging unauthorized employment. To facilitate this, IRCA created the Form I-9, which employers must complete and retain for every employee.

In the years following IRCA, immigration enforcement continued to evolve. After the September 11, 2001, attacks, the U.S. government restructured its immigration agencies, shifting responsibilities to the newly formed Department of Homeland Security (DHS). While 9/11 did not directly change I-9 compliance requirements, it did lead to a broader focus on immigration enforcement and national security. This restructuring placed U.S. Citizenship and Immigration Services (USCIS) in charge of administering Form I-9 requirements and Immigration and Customs Enforcement (ICE) in charge of enforcing worksite compliance.

Today, ICE continues to increase its scrutiny of employer compliance. In fiscal year 2018, the number of worksite investigations quadrupled, and the agency has since dedicated additional resources to enforcement efforts. For employers, this means that following both the letter and spirit of the law is more important than ever to avoid costly penalties.

• Who Completes It? The employee must complete Section One no later than their first day of work.

• What’s Required? The employee provides personal information and attests to their work authorization status by selecting one of four categories:
  1. U.S. Citizen
  2. U.S. Non-Citizen National
  3. Lawful Permanent Resident (but not an asylee or refugee)
  4. Alien authorized to work in the U.S. (must provide documentation, such as an Alien Registration Number, Form I-94 Admission Number, or a Foreign Passport with country of issuance)
• Legal Implications: The employee’s signature attests under penalty of perjury that the information is correct. Employers must ensure the form is properly completed.

• Who Completes It? The employer (or an authorized representative) must complete Section Two within three business days of the employee’s start date.

• What’s Required?
  • The employee presents original, unexpired documents that establish identity and work authorization.
  • The employer physically examines these documents to determine if they reasonably appear to be genuine.
  • Acceptable documents fall into three categories:
    • List A: Establish both identity and work authorization (e.g., a U.S. passport, Green Card, or Employment Authorization Document).
    • List B: Establish identity only (e.g., a driver’s license or state ID). If a List B document is used, the employee must also provide a List C document.
    • List C: Establish work authorization only (e.g., a Social Security card that is not restricted).
• Legal Implications: The employer’s signature attests under penalty of perjury that the documents were examined and appeared valid.

Supplement A is used only if an employee receives assistance in completing Section One of Form I-9. If an employee can complete Section One on their own, this supplement is not needed.

• When is it Required?
  • If an employee needs help due to language barriers or other reasons, a preparer or translator must complete Supplement A.
  • If multiple preparers or translators assist, each must complete a separate Supplement A.
• Employer Responsibility:
  • Employers must ensure Supplement A is properly completed and attached to the I-9, but they do not need to verify the accuracy of the employee’s information—only that the form is filled out correctly.

• When is This Required?
  • If the employee’s work authorization expires
  • If the employee is rehired within three years of the original I-9’s completion
  • If the employee’s legal name has changed
• Legal Implications: Just like the first two sections, the employer’s signature carries legal weight and must be completed accurately

In today’s enforcement landscape, I-9 compliance is more than just an HR formality—it’s a critical legal requirement. Even good-faith mistakes can result in significant penalties, and ICE audits are increasing in frequency. Employers looking to reduce risk and ensure full compliance should consider partnering with an I-9 compliance software provider. Automating the process not only enhances accuracy but also provides a valuable layer of protection against audits, fines, and potential legal consequences.

By understanding and following the I-9 process carefully, businesses can avoid costly errors and stay on the right side of the law.