Tips on Completing Employment Eligibility Verification (I-9) Forms

May 1, 2006

by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2006

As Congress considers comprehensive immigration reform, many employers are renewing their efforts to properly complete and retain the Employment Eligibility Verification (I-9) Forms of their employees, and some are conducting self-audits on their compliance with the I-9 Form requirements. The following are tips for employers engaged in this process (culled from several Department of Homeland Security resources).

IRCA – The Immigration Reform and Control Act of 1986 (IRCA) sought to control illegal immigration by eliminating employment opportunity as a key incentive for unauthorized persons to come to the United States. IRCA’s core prohibition is against the hire or continued employment in the U.S. of an alien whom the employer knows is unauthorized for the employment. IRCA makes all U.S. employers responsible for verifying through a specific process the identity and work authorization or eligibility of all individuals, whether U.S. citizens or not, hired after November 6, 1986. To implement this, employers are required to complete Employment Eligibility Verification Forms I-9 for all employees.

I-9 Form – Form I-9 is the Employment Eligibility Verification Form issued by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service, or INS). The completion of the I-9 form process, which includes an employee’s attestation of work authorization and an employer’s review of documents presented by that employee to demonstrate identity and work authorization, is the means by which U.S. employers document that they have verified whether a newly hired employee is eligible to work in the U.S.

Form to Use – The current version of the I-9 form and Instruction Sheet is available online from the DHS website. (The I991 edition of the I-9 form was rebranded with a printing date of 5/31/05 to reflect the transition from the INS to DHS). Both pages of the I-9 Form must be photocopied when being duplicated for use by the employer (and may be reproduced in either double-sided or single-sided format). The 1-page Instruction sheet must be available to all employees completing the form. The I-9 form and Instruction Sheet is available in English only. Employers are permitted to electronically generate the I-9 form provided that the resulting form is legible, the content and sequence of the data elements and instructions match those on the DHS documents and the paper is of retention quality.

Who Must Complete the I-9 Form – All U.S. employers are responsible to verify the employment eligibility and identity of all employees (U.S. citizens as well as non-citizens) hired to work in the United States after November 6, 1986.

Employees Hired Prior to November 6, 1986: An employee who was hired before November 7, 1986 and has been continuously employed by the same employer is not required to complete an I-9 form.

Independent Contractors: An individual providing services for an employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire) are not required to complete an I-9 form.

Employees from Temporary Service: A person providing services for an employer under a contract entered into after November 6, 1986 is not required to complete an I-9 form for the employer they are working for, but must complete an I-9 form for their own employer (e.g., the temporary employment service or agency for whom they are employed).

Domestic Services: A person providing domestic services in a private household that are sporadic, irregular, or intermittent, is not required to complete an I-9 form.

When Must the I-9 Form be Completed – All employees hired after November 6, 1986, must complete Section 1 of the I-9 form at the time of hire, which is the actual beginning of employment (i.e. the first day of paid work). The I-9 process may not be used to pre-screen employees for hiring. The government has estimated that it takes, on average, 15 minutes to complete an I-9 form.

Employee Must Complete Section 1 of I-9 Form – The employer is responsible for ensuring that the employee timely and properly completes Section 1 of the form.

Complete: Employees need to provide the information requested in Section 1.

Month/Year Format: Employers should remind employees of format conventions such as providing dates in the format of month/day/year, since date formats in their countries of origin may have a different order.

SSN: An employee may not be able to provide a Social Security Number (SSN) if the Social Security Administration has not yet issued the individual a Social Security Card. The SSN information block in Section 1 of the I-9 form is optional. Therefore, an employer cannot require an employee to complete it.

May Not Require Documents to Verify Section 1 Information: Although employers are held responsible for deficiencies of information in Section 1 (i.e. where required information is not provided by the employee), they may not require employees to produce documents to verify Section 1 information.

Attestation Required: Employees must attest to their status by checking the applicable box indicating that they are a: (a) citizen/national of the United States; (b) lawful permanent resident with a "green card"; or ( c) an alien authorized to work in the United States until a specified date. Certain aliens, such as asylees and refugees, are work authorized incident to their status and may not have an expiration date to fill-in for the bottom box of the attestation block in Section 1.

Sign and Date: Employees must sign and date this Section of the I-9 Form when completed.

Penalty of Perjury: An employee’s signature and attestation of status under penalty of perjury are particularly important. If a given employee refuses to provide his/her signature or attestation, there is no reason for the employer to proceed to complete Section 2, and the employer should not continue to employ the individual.

Use of Translator: If used by the employee to fill out Section 1, translators or preparers must also sign, date and provide requested information in the Preparer/Translator Certification Block at the bottom of Section 1. Employers themselves must fill in and sign this block if they have assisted employees with Section 1.

Employer Must Review, Verify and Complete Section 2 of I-9 Form – The second part of the I-9 form requires the employer to list the documents that were produced by the worker to verify his or her identity and employment eligibility.

Timing: The employer must complete Section 2 of the I-9 form by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. However, if the employer hires an individual for a duration of less than 3 business days, the I-9 form must be completed at the time employment begins.

Use of Agents and Remote Hires: Employers who hire employees in remote locations may designate agents such as notaries public, attorneys, personnel officers, foremen, or other trusted individuals to exercise the Section 2 review of documents on their behalf. Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee, nor should I-9 forms be mailed to new employees to complete themselves. Whoever fills out Section 2 of the I-9 form must personally review the employee’s original document(s). An employer is bound by the agent, and employers may not use agents to shield themselves from responsibility.

Original Documents: The employer (or employer’s representative or agent) must personally review original document(s) that demonstrate an employee’s identity and eligibility to work in the U.S. (Original documents are not necessarily the first document of its kind ever issued to the employee, but an actual document issued by the issuing authority). Photocopies (or numbers representing original documents) are not acceptable. Exception: List C, #3, a certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the U.S. bearing an official seal is acceptable.

Acceptable Documents: There are three groups of documents that a worker may use to demonstrate an employee’s identity and eligibility to work in the U.S. A worker may choose to provide: (a) a List A document (which establishes both identity and work authorization), or (b) he/she may choose to provide one List B document (which establishes identity) and one List C document (which establishes work eligibility). Employers cannot specify which documents they will accept from an employee or demand more or different documents than an employee chooses to present, provided that the documents presented are acceptable under the I-9 requirements. The documents that can be presented by employees are listed on the reverse side of the I-9 form. (Changes to the list are set forth in DHS Employer Information Bulletin 102. The interim rule of September 30, 1997, reduced the number of documents that are acceptable for the I-9; however, these changes are not reflected on the Form I-9. See 8 C.F.R. 274a.2(b)(1) for the most up to date list of acceptable documents).

Document Review Standard: The standard for review of documents in the employment eligibility verification process is that of reasonableness. An I-9 List document is acceptable if it reasonably appears on its face: (a) to be genuine, and (b) to relate to the individual who presents it (e.g., the name on the Social Security card should be compared to the name on the state driver’s license and the photo on the driver’s license should be compared to the appearance of the person who presented the documents). In other words, an employer or employer’s agent who signs Section 2 of the Form I-9 is not attesting to the legitimacy of the status of the person who presents the document but, rather, to the fact that he or she has reviewed the original document and that it reasonably appears to him or her, upon reasonable inspection of its features and the information it contains, to be genuine and to relate to the employee who has presented if for employment eligibility verification purposes. Employers should be alert for signs of fraud, such as a Social Security Card that contains more than nine digits or that begins with "000."

Relationship between Document Review and Continued Employment: If a document reasonably appears to be genuine and to relate to the person presenting it, the employer should not discharge that employee. However, if a document does not meet this standard, the employer should reject it for employment eligibility verification purposes and ask the individual to produce other acceptable I-9 documentation. An employer’s decision not to accept a certain document because it has decided that the document fails the "genuineness" and/or "relates to" test does not mean that the person is not authorized to work or that the person should be discharged, but only that the document at issue does not meet the standard. Other documentation from the same person that is on the List of Acceptable Documents for I-9 purposes and meets the standard may be accepted and the I-9 form completed accordingly. In cases where the employee does not produce acceptable documentation that appears to be genuine and to relate to the individual presenting it, the employer should not continue to employ the individual.

Discovering False Documentation: False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.

Constructive Knowledge: Knowingly hiring or continuing to employ unauthorized aliens is a serious violation that subjects the employer to civil and, where there is a pattern or practice of such violations, criminal penalties. In this context, the term “knowing” includes not only actual knowledge, but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer: (a) fails to complete or improperly complete the I-9 form; (b) has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or Application for Prospective Employer; or ( c) acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf. An employee’s foreign appearance or accent, however, is not a relevant factor.

Verification of Documents: Employers cannot and should not attempt to verify "List A" numbers with the DHS. "List A" number verification is authorized only by employer participants in the DHS Employment Verification Pilot Program.

Future Expiration Dates: An employer may not consider the fact that work authorization documents have future expiration dates as cause not to hire or to discharge an employee.

Expired Documents: Documentation must be rejected if it is expired, with two exceptions: the U.S. Passport (a List A document) and all List B documents.

The New Receipt Rule: Employees who do not possess the required documentation when employment begins may not submit receipts showing that they have applied for initial applications for documents or for applications for extension of documents except in three limited circumstances. A receipt is never acceptable for employment lasting less than 3 working days. The "receipt rule" stated in the I-9 Instructions and the Handbook for Employers is NOT the current rule. Originally effective September 30, 1997, and amended on February 9, 1999, the rule explaining when receipts may be used in lieu of original documents in the I-9 process is now as follows.

If an individual’s document has been lost, stolen, or damaged, then he/she can present a receipt for the application for a replacement document. The replacement document needs to be presented to the employer within 90 days of hire or, in the case of reverification, the date employment authorization expires.

If the individual presents as a receipt, the arrival portion of the Form I-94 containing an unexpired temporary I-551 stamp (indicating temporary evidence of permanent resident status) and photograph of the individual, such document satisfies the I-9 documentation presentation requirement until the expiration date on the Form I-94. If no expiration date is indicated, an employer may accept the receipt for one year from the date of the I-94 Form.

Form I-94 with a refugee stamp is acceptable as a receipt for 90 days, within which time the employee must present an unrestricted Social Security card together with a List B identity document, or an Employment Authorization Document (Form I-668B or I-766). To indicate refugee status, the stamp may include a reference to Section 207 of the Immigration and Nationality Act (INA) rather than use the words “refugee.”

May Photocopy Documents: An employer may, but is not required to, copy a document (front and back) presented by an individual solely for the purpose of complying with the I-9 verification requirements. If such a copy is made, it must be retained with the I-9 form. The copying of any such document and retention of the copy does not relieve the employer from the requirement to fully complete Section 2 of the I-9 form. If employers choose to keep copies of I-9 documentation, then it should be done for all employees, and the copies should be attached to the related I-9. Employers should not copy the documents only of individuals of certain national origin or citizenship status. To do so may constitute unlawful discrimination under Section 274B of the Immigration and Nationality Act..

Must Record Info on Form: Employers must record on the I-9 form: (a) the document title, (b) the issuing authority, © the document number, (d) the expiration date, if any, and (e) the date employment begins, even if the documents presented by the employee will be copied and retained with the I-9 form.

Must Certify and Sign: Employers are required to sign and date the bottom of Section 2 and provide all requested information in the Certification portion. The personal attestation and signature of the employer are extremely important. The person who actually review original documents – whether that person is the employer, or an agent of the employer, such as a provider of contract services to the employer, must sign and date the I-9 form.

Updating and Reverification in Section 3 of the I-9 Form – Employers are required to reverify employment eligibility when an employee’s employment authorization (indicated in Section 1) or evidence of employment authorization (recorded in Section 2) has expired. An employer may also reverify employment authorization, in lieu of completing a new I-9 form, when an employee is rehired within three years of the date that the I-9 form was originally completed and the employee’s work authorization or evidence of work authorization has expired. Also, temporary evidence of permanent resident status in the form of an unexpired foreign passport containing a temporary I-551 ADIT stamp is subject to the reverification requirement.

Institute a System: Most employers find it useful to institute a system that reminds them automatically, in advance, that a given employee’s authorization document will expire. Advance warning assists both employees and employers, since early notice will usually allow employees time to renew the authorization prior to the expiration date and avoid penalties to employers for continuing to employ unauthorized workers. Enough advance warning is important so the employee can apply for and receive replacement documents in time to maintain uninterrupted employment.

Reverification Process: No later than the date that employment authorization or employment authorization documentation expires, employers must reverify employment authorization on Section 3 of the I-9 form, or by completing a new I-9 form to be attached to the original I-9 form. To reverify expired status (Section 1), and/or expired work authorization document(s) (Section 2), an employee may present any currently valid List A or List C document. Receipts showing that the employee has applied for an extension of an expired employment authorization document are not acceptable.

Other Documents May Be Presented: Employees are not required to present, for reverification purposes, a new version of the same document that was presented to satisfy Section 2 but subsequently expired. Any document or combination of documents that would be acceptable to demonstrate work eligibility/authorization under Section 2 may be presented for reverification purposes. It is the employee’s choice as to which document to present.

Where Reverification is Not Required: Permanent Resident Cards (also known as Alien Registration Receipts cards, Forms I-551, Resident Alien Cards, Permanent Resident Cards, or "Green Cards") are issued to lawful permanent residents and conditional residents and should not be reverified when the cards expire. Temporary evidence of permanent resident status in the form of a temporary I-551 stamp in an unexpired foreign passport is subject to reverification. This is because of the temporary nature of this document. Likewise, List B documents need not be reverified when they expire. In fact, List B document are acceptable when initially shown, even when expired.

Rehires: Employers may reverify information of an employee rehired within 3 years of the date of the initial execution of the I-9 form as an alternative to completing a new I-9 form. If the rehire’s basis of employment eligibility, as listed on the retained I-9, remains the same, the employer must update the previously completed I-9. If the basis of work eligibility has expired, the employer must reverify. To update or reverify on the previously completed I-9, employers must complete Section 3 items A (name), B (date of rehire), and C (new documentation) in full, as applicable. It is important that the person who actually examines the documents on behalf of the employer personally sign and date the attestation provision at the bottom of the form. Documentation for reverification purposes may be the renewed version of the originally presented document or any other acceptable document from List A or List C that demonstrates current work eligibility/authorization. List B documents do not need to be updated or reverified, even if expired.

Retention of I-9 Forms – An employer must retain the I-9 form of each employee either: (a) for three (3) years after the date of hire; or (b) for one (1) year after employment is terminated, whichever is later.

Current Employees: All current employees, therefore, must have an I-9 form on file with the employer.

Former Employees: All employees terminated by the employer within the past year must have an I-9 form on file with the employer. Steps to determine how long to keep I-9 forms for former employees are as follows: (a) step one: identify the employee’s hire date and add three years = Date A; (b) step two: identify the termination date and add one year = Date B; ( c) step three: compare Date A and Date B; and (d) step four: determine the later date [Date A or Date B] in each case, and the later of the two is the retention date for the corresponding I-9 form.

How to Maintain Records. Employers may, but are not required, to maintain I-9 forms in a separate file from employee personnel files. Such separate file may facilitate retrieval of I-9 forms in the event of a government audit, particularly if such forms are maintained chronologically. In October 2004, Congress passed a law that specifically authorizes employers to retain I-9 forms in electronic format.

Where to Maintain Records: I-9 forms may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within three (3) days of an official request for production of the documents for inspection.

Government Audits of I-9 Forms – All I-9 forms subject to retention requirements are subject to inspection by an authorized official of DHS, the Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practices of the Department of Justice, in one of three ways: (a) by providing at least three (3) days notice prior to an inspection of the I-9 forms, (b) by issuing a subpoena, or © by serving a warrant. Original I-9 forms (as opposed to photocopies) may be requested.

Missing I-9 Forms – An employer who discovers that an I-9 form is not on file for a given employee should request the employee to complete Section 1 of the I-9 form immediately and submit documentation as required in Section 2. The new form should be dated when completed – NEVER – post-date. (Employers may provide an explanatory annotation to an untimely-completed I-9 form). When an employee does not provide acceptable documentation, the employer must terminate employment or risk being subject to penalties for "knowingly" continuing to employ an authorized worker if the individual is not in fact authorized to work.

Discovering an Unauthorized Employee – An employer who discovers that an employee has been working without authorization should reverify work authorization by allowing such an employee another opportunity to present acceptable documentation and complete a new I-9 form. However, employers should be aware that if it knows or should have known that an employee is unauthorized to work in the Unites States, they may be subject to serious penalties for "knowingly continuing to employ" an unauthorized worker.

Discrimination – The law protects certain individuals from unfair immigration-related employment practices of a U.S. employer, including refusal to employ based on a future expiration date of a current employment authorization document. The U.S. government entity charged with oversight of the laws protecting against unfair immigration-related employment practices is the Office of Special Counsel for Immigration Related Unfair Employment Practices, which is part of the Civil Rights Division of the U.S. Department of Justice.

Successive Employers and Reorganizations – Employers that acquire a business as a result of a corporate reorganization, merger, or sale of stock or assets, and retain the predecessor’s employees are not required to complete new I-9 forms for those employees and may rely on the I-9’s completed by the predecessor employer if the employees are continuing in employment, and they have a reasonable expectation of employment at all times. However, the successor employer will be held responsible if the predecessor’s I-9 forms are deficient or defective. Accordingly, since the new employer would be responsible for any errors, omissions or deficiencies in the acquired records, it may choose to protect itself by having a new I-9 form completed for each acquired employee.

Service Providers – Some business entities contract with professional employer organizations (PEOs) to handle the personnel and benefits aspects of the business. This may include completion and retention of I-9 forms. Where the business entity and the PEO are "co employers," only one I-9 form needs to be completed between the co-employers for each employee who was simultaneously hired by the co-employers. A business entity and PEO will be deemed a "co-employer" if, among other things, an employer/employee relationship is said to exist between the business entity and PEO on the one hand, and the individual on the other, even though the employee is only performing one set of services for both co-employers. Therefore, the authority to hire or terminate employment would have to be in the hands of both the business entity and the PEO. Since both entities are employing the individual, however, both entities remain equally responsible for meeting the I-9 form requirements and equally liable for any failures to meet those requirements. Accordingly, the employer is fully responsible for errors, omissions, and deficiencies in the PEO's processing.

Penalties – The DHS has published a three-page summary of potential Employer Sanctions for violations of IRCA.

Sources – This summary was developed from a variety of DHS information and publications, including: The I-9 Process in a Nutshell, General Information About the Form I-9, I-9 Document Review, and About Form I-9, Employment Eligibility Verification. For more links, please visit our Immigration - Employment Eligibilty Verification and I-9 Form webpage.

Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 335 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.

Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.

Kansas City, MO 1201 Walnut St., Suite 2900 Kansas City, MO 64106 816.842.8600	Overland Park, KS 12 Corporate Woods 10975 Benson, Suite 550 Overland Park, KS 66210 913.451.8600	St. Louis, MO 168 N. Meramec, 4th Floor St. Louis, MO 63105 314.863.0800	Wichita, KS 1625 N. Waterfront Pkwy Wichita, KS 67206 316.265.8800
Omaha, NE 1299 Farnam St., Suite 1501 Omaha, NE 68102 402.342.1700	Phoenix, AZ 1850 N. Central Ave, Suite 2100 Phoenix, AZ 85004 602.279.1600	Jefferson City, MO 230 W. McCarty St. Jefferson, City, MO 65101 573.636.6263	Washington, D.C. 1150 18th St., N.W., Suite 800 Washington, D.C. 20036 202.785.9100
www.stinson.com		www.lawatwork.com

← News Home

A service of Stinson Morrison Hecker, LLC

SMH Home | Practice Areas | Our Attorneys