The employment eligibility verification requirement was established by the Immigration Reform and Control Act of 1986 (IRCA). In general, U.S. employers must complete a Form I-9 Employment Eligibility Verification for every person hired after November 6, 1986.
The Form I-9 requires employers to review and record data from the individual’s original identity and employment authorization document(s) and assess whether those documents appear to be genuine and relate to the individual presenting them.
Failure to comply with the IRCA or complete the correct version of the Form I-9 can result in technical or substantive violations and lead to civil and/or criminal sanctions.
Completing the Form I-9
The Form I-9 consists of three 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., first 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 they have 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 their status by checking that they are:
- A U.S. citizen/national;
- Lawful permanent resident with a green card; or
- 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 years after the date of hire or for one 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 a 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 Form I-9s, in most cases, but the acquiring employer will be held responsible if the predecessor’s Form 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 employer must complete and sign Section 2 within three business days of the date of hire of the employee.
The employee may present the following:
- One unexpired List A document establishing both identity and work authorization
- One unexpired List B document establishing identity and one unexpired List C document establishing work authorization
I-9 compliance procedures
An employer should have the following basic I-9 compliance procedures in place:
— The employer should require every new employee to complete the top portion (Section 1) of the Form I-9 on the first day of work. If the employee refuses to do so, they should not be permitted to resume working until this is completed. In most cases, the new employee must provide documents which show their employment eligibility by the end of the third day of work. If the employee fails to do so, they should not return to work until the documents are provided.
— 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.
— 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.
— All I-9 forms should be kept separate from all other personnel or payroll records and may be stored electronically.
— Employers should designate specific individuals to handle I-9 compliance with trained back-ups. Serious consequences exist for failing to comply with the law.
— Employers should make efforts to train hiring managers on Form I-9 requirements and periodically review these requirements with the hiring managers.
— Employers should not ignore letters from the Social Security Administration (SSA) stating an 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.