Completing the Form I-9

The Form I-9 consists of three (3) sections.

The employee completes Section 1, and the employer completes Sections 2 and 3.  The employer is responsible for ensuring that the I-9 is timely and properly completed.  This includes ensuring that the employee completes Section 1 upon the date of hire (i.e., 1st day of paid work).

Although responsible for deficiencies of information in Section 1, an employer cannot require an employee to produce specific documents.  If an employee refuses to sign or attest to the information in Section 1,  the employer is not obligated to complete Section 2 and should terminate the employee from employment.

If the employee is unable to provide a social security number because s/he has not yet been issued a social security number, the employee is not required to complete that information block.

In Section 1, the employee must attest to his/her status by checking that s/he is:

1.  A U.S. citizen/national

2.  Lawful permanent resident with a green card or

3.  An individual who is authorized to work in the United States

The employee must sign and date Section 1 (watching format conventions for dates).

Asylees and foreign refugees are work authorized incident to status and may not have an expiration date to fill-in for the bottom box of the attestation block in Section 1.

If a translator or the employer assists in completing Section 1, this should be noted in the Preparer/Translator Certification Block below Section 1.

An employer must retain the Form I-9 for each employee either for three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later.

If a Form I-9 is not on file for an employee, the employer may request that the employee complete Section 1 of the Form I-9 immediately and submit the documentation as required in Section 2.  However, the Form I-9 should be dated when completed – not backdated!

If an unauthorized employee is discovered, the employer should re-verify work authorization allowing the employee to present acceptable documentation and complete new Form I-9.

In instances of corporate reorganizations, mergers or sale of stocks or assets, the predecessor’s employees do not have to complete new Forms I-9 but the acquiring employer will be held responsible if the predecessor’s Forms I-9s are deficient or defective.

Section 2 requires the employer to list the documents produced by the employee to verify identity and employment eligibility.

The employee may present the following:

  • One unexpired List A document establishing both identity and work authorization

OR

  • One unexpired List B document establishing identity and
  • One unexpired List C document establishing work authorization

An employer should have the following basic I-9 compliance procedures in place:

  1. The employer should require every new employee to complete the top portion (Section 1) of the I-9 form on the first day of work. If the employee refuses to do so, s/he should not be permitted to resume working until this is completed. In most cases, the new employee must provide documents which show his/her employment eligibility by the end of the third day of work. If the employee fails to do so, s/he should not return to work until the documents are provided.
  2. The employee should be permitted to provide any acceptable document or combination of documents listed on the Form I-9 (requesting specific documents can be considered discriminatory). Likewise, an employer must treat all employees in a consistent manner and not discriminate on the basis of citizenship status or national origin in employment eligibility matters.
  3. If an employee is not a U.S. citizen or permanent resident, the employer must note when that person’s employment authorization expires and calendar to re-verify employment eligibility prior to that date.
  4. All I-9 forms should be kept separate from all other personnel or payroll records and may be stored electronically.
  5. Employers should designate specific individuals to handle I-9 compliance with trained back-ups. Serious consequences exist for failing to comply with the law. Even if an employer only employs authorized workers, it can still be liable for significant fines for failure to properly maintain paperwork.
  6. Employers should make efforts to train hiring managers on I-9 requirements and periodically review these requirements with the hiring managers.
  7. Employers should not ignore letters from the Social Security Administration (SSA) stating a particular employee’s Social Security Number does not match SSA records. These are often referred to as “no match” letters. The receipt of such a letter might indicate that an employee is not authorized to work, thereby putting an employer on constructive notice. An employer should follow up on these matters after consulting with counsel.