Federal Law stipulates that employers only hire individuals who can legally work in the United States, either U.S. citizens or foreign citizens who have the required authorization. To act in accordance with the law, all employers must complete and preserve Form I-9 (Employment Eligibility Verification) to document verification of the identity and employment authorization of all new employees, citizens and noncitizens, to work in the United States.
Employees and employers (or authorized representatives of the employer) must complete the form. The employee must complete Section 1, which they must confirm to their employment authorization. The employee must also present their employer with suitable documents providing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) the employee presents to determine if the document(s) appear to be authentic and relate to the employee and record the document information in Section 2.
Section 1 – Employee Information and Attestation
Newly hired employees must complete and sign Section 1 no later than the first day of employment, but not before they accept a job offer with the company. The employer must have the form instructions available to the employee in paper or in an electronic format, while the employee completes the form.
The employee must choose one of the following to attest their citizenship or immigration status:
- A Citizen of the United States
- A Noncitizen national of the United States
- A Lawful Permanent Resident
- An Alien authorized to work
The form must be dated and signed the day it is completed. If the employee did not use a preparer or translator, the employee must check the box marked, “I did not use a Preparer or Translator.” If the employee has one or more preparers and/or translator to complete Section 1, the preparer and/or translator must check the box, “A preparer(s) and/or translator(s) assisted the employee in Section 1.” The preparer and/or translator is required to complete all of the fields in the Certification area, and the sign and date.
The employee must present to their employer documentation that verifies their identity and employment authorization within 3 business days of starting work for pay. The documentation that is presented must be original (except for certified copies of birth certificates) and unexpired. The documentation provided must be part of the “Lists of Acceptable Documents” included with the I-9 instructions. The employee must choose one choice from Lisa A (such as a passport or permanent resident card) or one choice from List B (such as driver’s license or state ID card) in combination with one choice from List C (such as a Social Security card or birth certificate).
Section 2 – Employer or Authorized Representative Review and Verification
Within 3 business days of the employee’s first day of employment, the employer is responsible for completing Section 2 by examining evidence of identity and employment authorization.
The employer must enter the employee’s name and citizenship/immigration status in Section 2 exactly as the employee entered them in Section 1.
The employee will present documents from the “List of Acceptable Documents,” and it is the responsibility of the employer to physically examine the documents (not faxed or emailed copies or photographs of the documents) and determine if they appear to be genuine and relate to the employee. The employer then must accept the documents and enter the document title, issuing authority, document number, and expiration dates (if any) for each document in Section 2.
The employer must allow the employee to choose the documents that are to be presented from the “List of Acceptable Documents.” The employer may not specify which document(s) the employee may present to establish employment authorization and identity.
All of the original documents must be returned to the employee. The employer may make photocopies of the documents reviewed, but it is not mandatory. If the employer decides to make photocopies of the documents, it is important to make photocopies of all employees’ documents to avoid a potential discrimination complaint.
To complete Section 2, the employer or their authorized representative must: Attest under penalty of perjury, the following:
- Attest, under the penalty of perjury, the following:
- That the employer has examined the document(s) presented by the employee
- That the document(s) presented appear to be genuine and relate to the employee
- To the best of the employer’s knowledge, the employee is authorized to work in the United States
- Enter the employee’s first day of employment
- Enter the last name, first name and title of the employer or authorized representative
- Enter the employer’s business or organization name and address
- Sign and date the form. This date must be the date Section 2 of the form is signed. This cannot be backdated.
Section 3 – Reverification and Rehires
Employers must complete Section 3 when an employee’s employment authorization has expired (“reverification”). Employers may complete this section when an employee is rehired within 3 years of the date the Form I-9 was originally completed, or when an employee has a legal name change. The employer must also enter the employee’s last name and first name at the top of Section 2. The Citizenship/Immigration Status field is to be left blank.
The reverification section must be completed prior to the earlier of the expiration date, if any of the employment stated in Section 1, or the expiration date, if any of the List A or List C employment authorization document recorded in Section 2.
An employee must present an unexpired document(s) from either List A or List C showing that they are still authorized to work, for reverification. Employers are not to reverify List B documents.
If an employee is rehired by the employer within 3 years of the date that the employee’s Form I-9 was first completed, the employer may either rely on the employee’s previous Form I-9 or have the employee complete a new one. If the employee is rehired after 3 years of completing the original Form I-9, the employee must complete a new one.
The employer should return all original documents used in Section 3 to the employee.
Retaining I-9 Forms
The Form I-9 must be retained by the employer and made available for inspection. THe employer must retain each employee’s completed Form I-9 for as long as the employee works for the employer. If the employee is terminated, the employer must keep the Form I-9 until the later of:
- 3 years after the date of hire; or
- One year after the date employment is terminated.
All completed Form I-9 and all accompanying documents should be stored in a safe, secure location.
Penalties for Noncompliance
If an employer does not comply with I-9 requirements, they may be subject to significant penalties ranging from $216 to $2,156 per form.
The Form I-9, along with instructions, can be found on the U.S. Citizenship and Immigration Services website or by clicking here.