Can employers choose which documents they want to see for the I-9?

In recent years, immigration has solidly maintained a mainstream presence in American politics. As politicians in Washington D.C. try to sort out immigration policies, it is estimated that the number of Immigration and Customs Enforcement (ICE) worksite investigations have almost quadrupled. Many American businesses are directly impacted by these investigations and are looking to avoid compliance issues by fine tuning their Form I-9 processes.

Whether employers have a question about Form I-9 completion or the required documents, the current state of politics and increasing number of worksite investigations indicates that finding the right answers to these questions and implementing proper protocol can help with compliance.

Can Employers Request Specific Documents for the I-9?

Each list of approved Form I-9 documents provides a number of choices that employees can provide to the employer. It is against the law for an employer to request, much less dictate, which documents an employee uses to prove his/her right to work in the US. And for good measure, a statement saying as much is written at the top of the I-9 form as a courtesy reminder to employers.

Since employers are required to examine documents presented by employees, the responsibility can make employers particularly concerned if they are not familiar with the types of approved documents mentioned under each list. However, an employer’s responsibilities for these documents generally includes just physically examining them to ensure the documents appear to be real, in the original version, and belonging to the employee who is presenting them.

How I-9 Forms and Supporting Documents Help Keep Companies Compliant

The Form I-9 is a one-page legal document that United States employers must have their employees complete. The form has three main sections. The first section must be accurately and truthfully completed by employees by their first day of employment. The second section of the form requires employers to verify an employee’s work eligibility by collecting and authenticating the required Form I-9 documents within three days of an employee’s start date. The third and last section of the form is primarily completed by employers if an employee’s name is legally changed, his/her work authorization expires, or the employee is rehired within three years of the original date listed on the I-9.

Once the I-9 forms are completed, storage is equally important. All forms must be kept for the proper amount of time and in an accessible location in case of an impromptu audit. This could be particularly difficult for companies with multiple locations that do not use an electronic system.

Although the Form I-9 is relatively short in nature, it can be so complex that employers often require additional resources to complete it, such as the United States Citizenship and Immigration Services’ Handbook for Employers M-274 or digital I-9 compliance software.

By following Form I-9 compliancy laws, employers may avoid criminal and civil violations associated with not being compliant. These violations can earn penalties that are assigned on a document by document basis, which could add up quickly. A company with enough blatant violations may accrue such a high number of expensive penalties that it can negatively impact the bottom line. In addition, companies found not to be compliant could be at risk for quickly losing part of their workforce, which could also negatively affect their overall profit margin.

Identification Documents Commonly Approved for the Form I-9

There are three different lists of documents that are acceptable for the Form I-9: List A documents, List B documents, and List C documents.

List A documents should prove identity and employment authorization. An example of some of the documents that may be acceptable under List A can include:

United States Passport or United States Passport Card
Permanent Resident Card or Alien Registration Receipt Card
Previous Permanent Resident Card (with signature)
Permanent Resident Card (with signature waived notation)
Employment Authorization Document Card
Previous Employment Authorization Document
Foreign Passports (with required forms, stamps, and notations)

List B documents generally establish identity only. Employees presenting this type of document are usually required to also present a document from List C. An example of some of the documents that may be acceptable under List B include:

Driver’s License
ID card Issued by a State or Outlying Territory of the U.S. (with required information)
Voter Registration Card
Federal, State, or Local Government Agency/Entity ID (with required information)
S. Military Card or Draft Record
Military Dependent’s ID Card
Minors can often present a school record, report card, or an official medical record

List C documents must be presented to employers with a List B document. An example of some of the acceptable documents under List C can include:

United States Social Security Account Number Card (unrestricted)
Consular Report of Birth Abroad
Certification of Birth Abroad (as issued by the U.S. Department of State)
Certification of Report of Birth (issued by the U.S. Department of State)
Original or Certified Copy of Birth Certificate Issued by a State, County, Municipal Authority, or Outlying Territory of the U.S. (bears an official seal)
Native American Tribal Document
S. Citizen ID Card
Identification Card for Use of Resident Citizen in the U.S.

Streamlining the Process with Digital I-9 Compliance Software

Digital I-9 compliance software programs are user friendly, intuitive, and can help minimize human errors often made when manually filling out a Form I-9, such as a blank field, missing signature, or missed deadline. A software’s ability to aid in keeping track of this information can help employers stay I-9 compliant and give them more peace of mind about the process.

Particularly when it comes to Form I-9 documents, digital software can be helpful in addressing the issues of expired documents. Some employees can be eligible to work in the United States, but their eligibility status can have an expiration date. A good digital I-9 compliance software program will include a feature that helps employers track these documents and identify them before they expire. This is particularly important because an expired Form I-9 document can cause a company to be found non-compliant.

Also, a good digital I-9 compliance software program will assist with secure document archiving. This feature helps employers determine which Form I-9 documents must be retained and which can be discarded. These programs will generally permit companies to digitize documents and attach them electronically. This paperless system can be convenient and efficient.

Many employers who manually enter Form I-9 information can expect to spend hours if not days or more to get an accurate report on the state of their I-9 compliancy. However, those utilizing digital I-9 compliance software tend to have faster centralized reporting times that are quite helpful in the case of an audit.

In the case of an audit, digital I-9 compliance software assists in providing auditors with mass printing of I-9 records and attachments in a timely manner. In addition, software programs usually assist auditors with important information about the software itself and provide proper audit trails.

While employers cannot request specific documents for the Form I-9, learning the process and implementing procedures to increase compliancy can help companies feel more confident and prepared should they be subject to an audit.