All employers are aware of the Form I-9 and most (hopefully all) understand that they and their employees must complete the Form within a certain period of time after employment begins. That being said, the Form I-9, and employment eligibility verification in general, remain an area where many employers have questions. In light of the revised Form I-9 set to be published on July 17, 2017, we have compiled the below information on the Form I-9 from the most basic, “What is the Form I-9?” to the more complex, “What if I acquire a company, do I need to obtain new Forms I-9 from employees I acquire?” This sampling pulls from the United States Citizenship and Immigration Services (USCIS) website, and also from the M-274 Handbook for Employers. Test your Employment Eligibility Verification knowledge below.
What is the Form I-9? The Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of the Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form. On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers. NOTE: State agencies may use the Form I-9. Also, some agricultural recruiters and referrers for a fee may be required to use Form I-9.
Where do I file my Forms I-9? You don’t. Employers do not file Form I-9 with USCIS or U.S. Immigrations and Customs Enforcement (ICE). Employers must have a completed Form I-9 on file for each person on their payroll who is required to complete the form. The Form I-9 must be retained and stored by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials from the Department of Homeland Security (DHS), Department of Labor (DOL), or Department of Justice. We recommend that you store your employees’ Forms I-9 separate from their personnel files and in one binder for ease of audit and production.
When do I use the Spanish Version of the Form I-9? The Spanish version of the Form I-9 may be completed by employers and employees in Puerto Rico only. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.
Is there a Guide for Employers who want to understand more? Yes, the M-274 Handbook for Employers, Guidance for Completing Form I-9, is a great resource for employers who have questions about the Form I-9. For example, an employee produces an expired Employment Authorization Card, but says that he/she has reapplied and is simply still waiting. Can you employ that employee while they wait? Your answer is in the M-274.
Do I need to fill out Forms I-9 for independent contractors or their employees? No. For example, if you contract with a construction company to perform renovations on your building, you do not have to complete Forms I-9 for that company’s employees. The construction company is responsible for completing Forms I-9 for its own employees. However, you may not use a contract, subcontract or exchange to obtain the labor or services of an employee knowing that the employee is unauthorized to work.
May I fire an employee who fails to produce the required documents within three business days of his or her start date? Yes. You may terminate an employee who fails to produce the required document or documents, or an acceptable receipt for a document, within three business days of the date employment begins.
What happens if I properly complete and retain a Form I-9 and DHS discovers that my employee is not actually authorized to work? You cannot be charged with a verification violation. You will also have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized individual, unless the government can show you had knowledge of the unauthorized status of the employee.
What is my responsibility concerning the authenticity of document(s) presented to me? You must examine the document(s), and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them.
May I accept a photocopy of a document presented by an employee? No. Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate.
My new employee presented two documents to complete Form I-9, each containing a different last name. One document matches the name she entered in Section 1. The employee explained that she had just gotten married and changed her last name, but had not yet changed the name on the other document. Can I accept the document with the different name? You may accept a document with a different name than the name entered in Section 1 provided that you resolve the question of whether the document reasonably relates to the employee. You also may wish to attach a brief memo to Form I-9 stating the reason for the name discrepancy, along with any supporting documentation the employee provides. An employee may provide documentation to support his or her name change, but is not required to do so. If, however, you determine that the document with a different name does not reasonably appear to be genuine and to relate to her, you may ask her to provide other documents from the Lists of Acceptable Documents on Form I-9.
What do I do when an employee’s employment authorization expires? To continue to employ an individual whose employment authorization has expired, you will need to reverify him or her in Section 3 of Form I-9. Re-verification must occur no later than the date that employment authorization expires. The employee must present a document from either List A or List C that shows either an extension of his or her initial employment authorization or new employment authorization. You must review this document and, if it reasonably appears on its face to be genuine and to relate to the person presenting it, enter the document title, number, and expiration date (if any), in the Updating and Reverification Section (Section 3), and sign in the appropriate space. If the version of Form I-9 that you used for the employee’s original verification is no longer valid, you must complete Section 3 of the current Form I-9 upon reverification and attach it to the original Form I-9. You may want to establish a calendar call-up system for employees whose employment authorization will expire and provide the employee with at least 90 days’ notice prior to the expiration date of the employment authorization. You may not reverify an expired U S passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.
Our company acquired another company, along with its employees. Are we required to complete Forms I-9 for these employees? Employers who have acquired another company or have merged with another company have two options: Option A: Treat all acquired employees as new hires and complete a new Form I-9 for each and every individual irrespective of when that employee was originally hired. Enter the effective date of acquisition or merger as the date the employee began employment in Section 2 of the new Form I-9. Option B: Treat acquired individuals as employees who are continuing in their uninterrupted employment status and retain the previous owner’s Forms I-9 for each acquired employee. Note that you are liable for any errors or omissions on the previously completed Forms I-9.