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FAQs About Form I-9 Compliance

January 24, 2023 by Vijay Thakkar

employers ask these common questions about Form I-9 compliance

Proper completion and processing of Form I-9 has been of the highest importance for every business ever since the Immigration Reform and Control Act mandated its use in 1986. Known as the Employment Eligibility Verification Form, this document serves to verify the identity and employment eligibility of every new employee hired to work for US employers. Only seemingly simple, the form requires close attention to details, as the document could be deemed incomplete or fraudulent if the audit detects any errors, and even the ones technical and easily avoidable may result in hefty fines. To assist in getting a better understanding and overview of the process resulting in improved Form I-9 compliance, we have compiled a list of the most frequently asked questions about the form and its features.

What Is the Purpose of Form I-9?

The federal government of the United States uses this form as a means of employment eligibility verification, i.e. to determine the identity and legal status of all new hires. The form was introduced as a direct result of the policies promulgated under the aforementioned Immigration Reform and Control Act of 1986, aiming to eliminate illegal employment and ascertain the eligibility of those with legal work authorization, whether or not US citizens.

Where Do I Find Form I-9?

Form I-9 is free to download from the US Citizenship and Immigration Services (USCIS) website. It is easy to enter data straight into the portable file, as it comes with clickable instructions and fillable fields. Both typed and handwritten information is acceptable, but it is necessary to print the form to have it signed, as Forms I-9 obtained from the website are not considered electronic I-9s under DHS regulations.

When Do I Need to Complete Form I-9?

The first day of employment is the day a new employee is obliged to sign and date Form I-9. The day of hire is defined as the commencement of work in exchange for wages or other types of compensation. After a job offer is accepted, employers must complete and sign Section 2 of Form I-9, Employment Eligibility Verification, within 3 business days of the date of hire of their employee.

Who is in Charge of Filling out Form I-9?

Both employee and employer (or their authorized representative) take part in filling out the form, separately. Section 1 is the responsibility of the employee, Section 2 of the employer. In case a translator or preparer is involved in assisting the employee in completing the form, there is a subsection in Section 1 to make a note of that.

There is also a third section, Section 3. It needs to be completed by the employer or their authorized representative to ensure re-verification once the documents used for I-9 inspection expire or the employee needs to be rehired or if there’s a legal name change.

Is Every Employee Required to Complete Form I-9?

All employees who receive some form of compensation for their work are required to complete the form, with some exceptions. For instance, people hired to do casual domestic work do not need to complete it. Also, when hiring independent contractors, a company is not required to submit I-9 Form for them.

On the other hand, employees receiving training in the U.S. to be able to continue working in a foreign country, are required to complete the form if the company is paying for that training. Even for a single day of training or work, completing the form is a must if the employer aims to secure Form I-9 compliance.

Company owners who are also employees of their own company need to complete the form. If you are, for instance, a business owner who actively performs services for a partnership or a corporation—both separate business entities—and receives payment in return, your I-9 Form should be on file as well.

Who Is Not Required To Complete Form I-9?

Unpaid individuals who receive training or gain work experience are exempted from the obligation to complete Forms I-9. A wide range of unpaid workers, from volunteers and trainees to interns and residents, belong to this group.

As previously mentioned, this exemption includes Individuals hired to do casual domestic work, those working overseas (outside the US and the US Territories), and those hired on or before November 6, 1986. Similarly, self-employed individuals do not have to complete Forms I-9, unless they are also employed by a separate business entity that they have set up.

People involved in recruiting or referring workers for a fee do not need to complete Forms I-9 except when they belong to any of the following groups: agricultural associations, agricultural employers, and farm labor contractors. Everyone they recruit or refer for a fee must turn in their Form I-9.

What Data Do I Need to Enter in Form I-9?

There are two main sections of the Form I-9, along with the third one, reserved for re-verification purposes or rehiring. As already observed, the mistakes made in the completion of the form can be very costly, so it is wise for employers to get familiarized with its content and pay full attention to its every detail.

Section 1 – Employee Information and Attestation

No later than the first day of employment, and not before the job offer is accepted, an employee needs to fill out this section of the form. It is designed to establish a person’s identity, so it requires the following information for the employee to provide:

  • Last, First and Middle name (Including all other last names used if applicable)
  • Address
  • Date of birth
  • An employee must enter his or her U.S. Social Security number if the employer participates in E-Verify
  • Email address
  • Telephone number

Form also provides the space for the employee to attest—under penalty of perjury—that they are qualified to work in the United States, as they are either:

  • A US citizen,
  • A noncitizen national of the US,
  • A lawful permanent resident (a green card holder), or
  • An alien who is authorized to work in the US.

The employee puts his signature and dates the document. Additionally, if anyone, either a translator or a document preparer assisted the employee in filling out the form, their identities and signatures need to be on the document.

Section 2 – Employer or Authorized Representative Review and Verification

This section needs to be filled out by the employer or their authorized representative, no later than three business days after the date of hire. This section provides a summary of the documents that the employer has inspected to ensure Form I-9 compliance – attesting to both identity and work authorization for the said employee being in order.

Section 3 – Reverification and Rehires

Section 3 of the form will have to be completed only in case of re-verification of employment, legal name change or rehire. Re-verification may be required in case an expired document used for initial verification expired and has been renewed. For rehire, it is possible to use this section instead of a new I-9 if an employee is rehired within 3 years of the date the Form I-9 was originally completed.

What Types of Documents are Acceptable for Form I-9 Compliance?

When filling out Form I-9, employees have a choice among three types of documents. These documents are listed at the end of the form and categorized in groups referred to as List A, List B, and List C. Documents presented could be either one List A document, or a combination of one document from List B and one document from List C. Employers have a duty to physically check the documents for authenticity.

List A

List A comprises documents that establish both the employee’s identity and work authorization. These are:

  1. U.S. passport or U.S. passport card,
  2. Form I-551, Permanent Resident Card, or Alien Registration Receipt Card. This card is also known as Green Card,
  3. Form I-766, Employment Authorization Document (EAD) containing a photograph,
  4. Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record, and containing an endorsement to work. This document can be used as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form,
  5. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa,
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

List B

Documents under List B establish only the identity of the employee. These are:

  1. Driver’s license or identification card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address,
  2. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address,
  3. School ID card with a photograph,
  4. A voter registration card is an acceptable document for List B. However, if the employer is enrolled in E-Verify, the employer may not accept a voter registration card that does not contain a photograph,
  5. U.S. military card or draft record,
  6. Military dependent’s ID card,
  7. U.S. Coast Guard Merchant Mariner (MMD) Card,
  8. Native American tribal document,
  9. Driver’s license issued by a Canadian government authority.

In case an employee is under 18 years of age and unable to present a document listed above, they may provide any of the following documents:

  1. School record or report card,
  2. Clinic, doctor or hospital record, or
  3. Daycare or nursery school record.

List C

List C includes documents that determine only the work authorization. These are:

  1. A Social Security Account Number card, unless the card includes one of the following restrictive wording:
  2. Not valid for employment,
  3. Valid for work only with INS authorization,
  4. Valid for work only with DHS authorization.
  1. Form FS-240, Consular Report of Birth Abroad,
  2. Form FS-545, Certification of Birth Abroad issued by the U.S. Department of State,
  3. Form DS-1350, Certification of Report of Birth issued by the U.S. Department of State,
  4. Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying territory of the United States bearing an official seal,
  5. Native American tribal document,
  6. Form I-197, U.S. Citizen Identification Card,
  7. Form I-179, Identification Card for Use of Resident Citizen in the United States,
  8. Employment authorization document issued by the Department of Homeland Security.

Can Employers Ask for Specific I-9 Documents?

No. The listed documents should be accepted to prove the employee’s identity and employment authorization as required for the I-9 verification purposes, to ascertain Form I-9 compliance as enumerated above. The employer cannot pick and choose, or refuse to hire a person simply because they failed to produce a document the employer wanted to see, but had other valid documents at hand.

The only time an employer may reject a document is if it does not reasonably appear to be authentic, or if it doesn’t seem to belong to the individual presenting it. In all other cases, it constitutes discrimination and every employer needs to be aware of this.

Is it Possible to Secure Form I-9 Compliance for Remote Employees?

According to the USCIS requirements, employees need to present original documents and allow employers to inspect them for validity and authenticity. Only a certified copy of their birth certificate is an exception to this rule. Therefore, it is not permitted to provide a photocopy of any of the other documents, let alone fax them or show them via webcam. However, due to the continued safety precautions related to COVID-19, DHS will extend the updated flexibilities until July 31, 2023.

As it happens, more and more remote hires have been happening lately and this will continue to be the case in the future. There is a solution to that – the employer can hire an authorized representative to act on their behalf. This means that an authorized representative needs to perform both the inspection of the documents and the completion of Section 2 of the form. The authorized representative could be anyone, not necessarily employed by the company, but the proper training is desired as the role a representative takes on here carries a lot of responsibility, which ultimately falls on the employer.

Two important caveats:

  • In California, only licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as immigration consultants may be designated as authorized representatives;
  • When a notary public acts as an authorized representative, their primary role is the same as every other person in this role. In other words, upon document examination, they do not need to provide a seal along with their signature.

What Steps Follow after Form I-9 is Completed?

There is no obligation to email the form or submit it to any of the federal authorities. Employers are free to choose the manner of safekeeping the files along with all supporting documents. They could be stored in paper form, on microfilm or electronically, or even in combination of these formats, for three years upon employment of each hire, or for one year upon termination of employment —whichever comes later.

In case of an I-9 audit, these files should be made available for inspection by the Department of Homeland Security, the Department of Justice, or the Department of Labor, following the 72- hour notice deadline.

Can Form I-9 Be Managed Electronically?

Definitely. In a digital era, dealing with massive data and documentation is simply unsustainable without electronic assistance. Especially in businesses with numerous staff, this need is obvious: errors in dealing with Form I-9 compliance, such as data entering, processing, filing, and storing can be avoided only if handled through a reliable digital platform.

Using the electronic I-9 administration management system is a way to enable savings in time and resources. You can easily browse through documentation, store it in one place and retrieve it easily, sync with E-Verify, make use of the electronic signature features and remote I-9 verification, keep an eye on re-verification deadlines, and stay ready for the next audit with no stress whatsoever.

Take advantage of the reliable outsourcing management program and secure Form I-9 compliance in all its aspects by perfectly balancing technology and human expertise. 

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