ABCs of Immigration: Form I-9 General Concepts

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Bruce Buchanan, The I-9 And E-Verify Handbook.]

What is the basis for employment verification?

Not much has changed since 1986, with Congress still debating many of the same illegal immigration and border control questions then as it does today. The debate in 1986 culminated with the Immigration Reform and Control Act (IRCA). An integral aspect of IRCA is a section which created an employer sanctions system requiring all employers in the United States to verify the identity and employment authorization of all employees hired since the 1986 passing of the act. Employers have become a central part of the immigration enforcement process after assuming responsibility for verifying the legal status of their employees. Shortly after the law passed, the Immigration and Naturalization Service (legacy INS) created Form I-9, Employment Eligibility Verification, in order to document that the employer has IRCA obligations. Employers are prohibited from “knowingly” hiring unauthorized immigrants, and an employer’s proper completion of the Form I-9 is the method for them to demonstrate a lack of knowledge that a particular employee is ineligible for employment.

Coupled with the provisions sanctioning employers that fail to verify the employment authorization and identity of its employees are provisions which bar certain immigration-related employment practices by the employer, including engaging in discrimination based citizenship status, national origin, or requiring non-U.S. citizens to provide certain or more documents than U.S. citizens, unfair documentary practices, formerly referred to as document abuse. Employees are also protected from retaliation when they file a complaint using the anti-discrimination rules.

Which government agency regulates compliance with the employer sanctions rules under the Immigration Reform and Control Act?

The U.S. Department of Justice (DOJ) was formerly responsible for the enforcement of compliance with the IRCA upon its inception, but that responsibility has since been transferred to U.S. Immigration and Customs Enforcement (ICE) once the U.S. Department of Homeland Security (DHS) was created in 2002.

What is the Form I-9?

The Form I-9 is a two-page from, with the possibility of a supplemental 3^rd page, which employers and employees complete in order to verify both the employee’s identity as well as the employee’s eligibility for employment in the United States. There are three sections of the form:

• Section 1 includes basic biographical information on the employee and asks that the employee certify that he or she is a citizen, a noncitizen national, a permanent resident, or an individual authorized to work under another status.
• Section 2 is completed by the employer who must verify and attest, under penalty of perjury, which documents an employee presented to prove his or her identity and right to work, and that the paperwork was completed in a timely manner. Employees should refer to the “List of Acceptable Documents.” For example, List A includes documents which prove both identity and work authorization (such as a U.S. passport or a lawful permanent resident card). Alternatively, an employee can provide an identification document from List B (such as a driver’s license or state identification) in addition to a document from List C (such as an unrestricted Social Security Card or a birth certificate) which would satisfy the employment authorization requirement.
• Section 3 is reserved for employers that must periodically re-verify the Form I-9 if the employee is not authorized to work permanently in the United States. Alternatively, it can be used for rehiring an employee under certain circumstances and updating an employee’s name due to a name change, though using this section for a name change is optional.

On July 17, 2017, the Form I-9 was updated, and as of September 18, 2017, all employers are required to use that version for new hires. Compared to the previous edition of the form dated November 14, 2016, the July 17, 2017 Form I-9 does not change any content. Rather it adds Form FS-240, Consular Report of Birth Abroad to List C of Acceptable Documents and lists it in combination with Form FS-545 and Form DS-1350. There are a couple of points in the instructions which are revised in the July 17, 2017 Form I-9.

The November 14, 2016 version of Form I-9 made some significant changes, including a third method for completing the form. In addition to paper and electronic methods, individuals are now capable of completing what is referred to as the “smart” Form I-9. Furthermore, the November 14, 2016 version made the following changes:

1. Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This change was made with the intent of preventing individuals from incorrectly placing nicknames in this field;
2. Modifying Section 1 to request that certain employees enter either their I-94 number or foreign passport information, as opposed to previously asking for both;
3. Requiring designation of whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form (though the numbers are the same, the more recent green cards refer to the number as USCIS);
4. Requiring “N/A” be entered instead of leaving certain fields blank;
5. Allowing an employee to use a P.O. Box as an address;
6. Permitting the use of a work or personal e-mail address (though either is still optional);
7. Augmenting the Form I-9 by adding a supplemental third page if using multiple preparers and/or translators; and
8. Adding an area in Section 2 to enter additional information for Temporary Protected Status (TPS) extensions, optional-practical-training (OPT) science-technology-engineering-math (STEM) extensions, and H-1B portability to avoid having to note this information in the margins of the Form I-9.

The introduction of the two-page form in the 2013 Form I-9, dated March 8, 2013, marked a distinct departure from previous versions. Other changes included (a.) giving employees the option of providing an e-mail address, so that the employee could be directly notified of a tentative nonconfirmation in E-Verify and/or telephone number (which, as explained in the Form I-9 instructions, is not mandatory, though the I-9 Form itself does not specify this); (b) providing clearer spaces for information in Sections 1 and 2; and (c) retitling Section 3 from “Updating and Reverification” to “reverification and Rehires.”

When must the I-9 Form be completed?

The Form I-9 process needs to begin on the first day of work for the employee or earlier. The employee needs to have completed the first section of the Form I-9 before the first day of employment and needs to supply the supporting documents specified on the “List of Acceptable Documents” attached to Form I-9 within three business days of his or her first day of employment. For example, if an employee’s first day is on a Monday, then Section 2 needs to be completed by Thursday. If these documents are not submitted in this timeframe, then the employee must be removed from payroll. This does not necessitate termination, however, as suspension of the employee would be sufficient. According to the U.S. Department of Homeland Security’s Handbook for Employers: Guidance for Completing Form I-9, M-274, the employee must have received an offer for the position and accepted it, and the form should not be used as a screening process for job applicants, because this would lead to the employer receiving a charge of national-origin and/or citizenship status discrimination. To the extent which an employer chooses to have Forms I-9 completed prior to the hire date of an employee, they should only request them after a position has been offered and filled.

The three-day window in which supporting documents need to be produced is also applicable to recruiters and referrers for a fee, as well as to state employment agencies.

What if an employee is being hired for less than a three-day period?

Employees who are hired for shorter than a three-day period are required to complete Section 1 of Form I-9 on the day of hire, and the employer needs to sign the verification attestation in Section 2 of the day of the hire. Therefore, employees for jobs necessitating three days or less of employment must present their documents on the day of hire.

In a nutshell, what are an employer’s Form I-9 requirements?

There are six essential obligations facing employers and others required for retain Forms I-9:

1. Have employees fully and properly complete Section 1 of the Form I-9 no later than the date employment commences.
2. Review the required documents to provide identity and employment authorization to ensure that they appear genuine and that they apply to the person presenting them.
3. Properly complete Section 2 of the Form I-9, and sign and date the employer certification within three business days of the date that the employment commences.
4. Retain the Form I-9 for the required retention period.
5. Re-verify employment authorization for employees presenting a time-limited Employment Authorization Document (EAD) or other type of time-limited document.
6. Make the Forms I-9 available for inspection if requested by the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), the Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Department of Justice (formerly the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC)), or the U.S. Department of Labor (DOL).

Are employers the only entities required to verify employment eligibility using Form I-9?

Aside from employers, agricultural associations and farm labor contractors need to complete Forms I-9 for individuals recruited or referred for a fee. The terms “refer for a fee” and “recruit for a fee” do not include union halls that refer union members and nonunion members.

Recruiters and referrers for a fee are allowed to designate agents, including national associations and the employee’s employer, to manage the Form I-9 process. If it is the employer who is designated for handling the process, the employer is responsible for providing the recruiter or referrer with a copy of the Form I-9, and the liability for IRCA violations still falls to the recruiter or referrer.

Recruiters and referrers subject to the Form I-9 rules must follow the timing and record-keeping requirements and make the Forms I-9 available to officers of U.S. Immigration and Customs Enforcement (ICE), the Immigrant and Employee Rights (IER) section of the Civil Rights Division of the Department of Justice (formerly Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)), or the U.S. Department of Labor (DOL). Any fines and penalties which would apply to employers would also be applicable to these recruiters and referrers.

Some state employment agencies also certify applicants they refer to employers. Come employment agencies may elect to provide employees with certification of employment authorization, and if the agency refers a job seeker to an employer and sends a certification of employment eligibility within 21 days of the referral, the employer is not required to complete a Form I-9. Employers do still need to check the certification to confirm that it does refer to the person that was actually hired and must retain the certification as they would a Form I-9.

State agencies that provide this service must adhere to the Form I-9 employment verification rules. One exception to this is that individuals may not present receipts, such as for a replacement Social Security card, as they may in certain cases with Forms I-9 completed by employers.

In the event a state employment agency wishes to refer an individual again after the individual has previously been certified, the state agency can rely on the previous Form I-9 if the individual remains authorized for employment and the employee is referred to an employer within three years of completion of the initial Form I-9. State agencies need to retain the Form I-9 for at least 3 years after the date the employee was last referred and hired.

What is the employee’s responsibility in completing the Form I-9?

Employees need to complete Section 1 of the Form I-9 which states the employee’s name, address, date of birth, and aliases as well as the employee’s status as a U.S. citizen or national, lawful permanent resident, or alien with employment authorization. Also, the employee may provide his or her e-mail address, telephone number, and Social Security number, though if an employer uses E-Verify, the Social Security number is required.  If the employee is an alien with authorization for employment, he or she is required to provide his or her alien or admission number and the expiration date of the employment authorization, if applicable, or the country of his or her foreign passport and number accompanied by a Form I-94/94A Arrival-Departure Record bearing the same name as the passport and containing an endorsement of the individual’s nonimmigrant status and authorization to work for a specific employer along with the expiration date of the employment authorization. Employees need to both sign and date Section 1 of the Form I-9 attesting to the truth of the statements and documents.

Also, employees need to present to the employer, recruiter, referrer for a fee, or referring state agency documentation from the “Lists of Acceptable Documents” demonstrating identity and employment authorization.

Are there any employees not required to complete the I-9 Form?

The Immigration Reform and Control Act mandates all employers have all employees that were hired after November 6, 1986 complete I-9 verification paperwork. This requirement is applicable to all employees, including U.S. citizens and nationals. Employees who are not hired do not need to complete Forms I-9, and employers who selectively choose who will and will not complete Forms I-9 could face penalties under anti-discrimination rules. Volunteers are exempt from Form I-9 rules, since they receive no remuneration for their services. Independent contractors are also exempt from Form I-9 rules, but employers should be aware that in the event that they outsource work to other companies that they are aware utilize employees who are unauthorized, they could also be held liable under the Immigration Reform and Control Act. People who are transferring within a company are not required to complete a Form I-9. Additionally, as long as the individual resumes employment within 3 years of completing the initial Form I-9, employees rehired by a company do not need to complete a new Form I-9. An employer can, however, decide to have a rehire complete a new Form I-9. Below are instances in which completion of a new Form I-9 is unnecessary:

• After completion of paid or unpaid leave (such as for illness or vacation).
• After temporary time layoff.
• After a strike or labor dispute.
• Gaps between seasonal employment.

What if an employee is a volunteer or is paid in ways other than with money? What if an employee receives a signing bonus prior to starting work?

U.S. Department of Homeland Security (DHS) regulations consider a person to be hired for purposes of an employer sanctions rules at the time of the “actual commencement of employment” for “wages or other remuneration.” Furthermore, “employment” is defined as service or labor performed by an employee for an employer. Taking these definitions into perspective, employees who receive a signing bonus by who have yet to begin actual employment would not be required to complete a Form I-9 until actual work for the employer has commenced.

Positions that are genuinely held by volunteers involve no receipt of pay nor any other type of benefit in lieu of pay, such as food and lodging. Although it remains a possibility that Congress did not intend to include situations in which a charitable organization has provided meals and lodging to volunteers not receiving pay for their labor, the rules do not explicitly make room for an exception, and the charity should play it safe and complete Forms I-9 for the volunteers.

Is a new Form I-9 required for employees who are transferred within a company?

No. Neither promoted nor transferred employees require a new Form I-9.

Do independent contractors need to complete a Form I-9?

No. Employees who are employed by an independent contractor are verified by the contractor. However, U.S. immigration and Customs Enforcement (ICE) has targeted employers when they have been able to demonstrate that the employer deliberately utilized a contracting firm with the intent of circumventing the IRCA and knew that the contractor’s employers were not employment authorized.

DHS regulations define “independent contractors” as including individuals and entities that control their own work and are subject to control only as it pertains to results. Employers should note that just because an individual identifies as a contractor and is issued a Form 1099 or that an entity is paid and then pays an employee, ICE will not necessarily consider the arrangement to be a contractor relationship as opposed to an employer-employee relationship. ICE will examine the nature of the relationship in order to determine whether it should really be classified as an employment relationship where employees should be completing the Form I-9.

According to Title 8 of the Code of Federal regulations, sections 274a.l(j), the following factors are considered when determining whether there exists a contractor relationship as opposed to an employer-employee relationship:

• Who supplies the tools or materials.
• Whether the contractor makes services available to the general public.
• Whether the contractor works for a number of clients simultaneously.
• Whether the contractor has an opportunity for profit or loss as a result of the services provided.
• Who invests in the facilities for work.
• Who directs the order or sequence in which the work is to be done.
• Who determines the hours during which the work is to be done.

The regulation is not the only test applied by the Office of the Chief Administrative Hearing Officer (OCAHO) when determining independent status. Another test, developed by case law, uses the following factors:

• The independent nature of the worker’s business.
• The worker’s obligation to furnish tools, supplies, and materials.
• The worker’s right to control the progress of the work.
• The time for which the worker is employed.
• Whether the worker is paid by the hour or by the job.
• The extent of relative investments.
• The degree of opportunity for profit or loss.
• The skill and initiative required.
• The permanency of the relationship.

Are domestic service employees (such as housekeepers, kitchen help, and gardeners) required to complete Forms I-9?

Sometimes. DHS’s definition of the term “employee” excludes those involved in “casual domestic employment.” Casual domestic employment includes individuals whose domestic service is in a private home and is “sporadic, irregular, or intermittent.”

The DHS Handbook for Employers: Guidance for Completing Form I-9 (M-274) specifically notes that “those who employ anyone for domestic work in their private home on a regular basis (such as every week)” are required to have that employee complete a Form I-9.

The M-274 handbook is not controlling law in and of itself, rather it interprets the Immigration Reform and Control Act. One could hold make the case that certain domestic employees who show up every week at a private home are independent contractors meeting the tests described in the regulations and case law.

A method for determining if a domestic employee is an employee for Form I-9 purposes is whether the U.S. Internal Revenue Service (IRS) would consider an employer obligated to withhold taxes, pay Social Security, etc. If a tax specialist advises that withholding is required based on the nature of the relationship, then employment verification should occur. Even if this is not the case, and even if an employee is paid in cash, it may still be a good idea to have the employee complete a Form I-9.

Under what circumstances would a returning employee not be required to complete a new Form I-9?

A returning employee does not need to complete a new Form I-9 in specific situations in which the individual is considered to be continuing prior employment. These include the following:

• An individual returning from an approved paid or unpaid leave of absence (on account of illness, pregnancy, maternity, vacation, study, family leave, union activities, or other temporary leave of absence approved by the employer.)
• The individual is promoter or demoted or receives a significant raise.
• The individual is temporarily laid off for lack of work.
• The individual is out on strike or is in a labor dispute.
• The individual is reinstated after a finding of unlawful termination.
• An individual transfers units within the same employer (the Form I-9 may be transferred to the new unit).
• There is a merger, acquisition, or reorganization, and the new employer assumes the Form I-9 responsibilities from the prior employer.
• The employee is engaged in seasonal employment.

It is the responsibility of the employer making the claim that the employee is continuing in prior employment to demonstrate that the employee expected to resume employment at all times and that this expectation was reasonable. Factors to be considered include whether the:

• Employee was employed on a “regular and substantial basis.”
• Employee complied with the employer’s established policies regarding absence.
• Employer’s history of recalling employees indicates the likelihood that the individual will be recalled.
• Position has not been taken over by another employee.
• Employee has not sought benefits like severance or retirement indicating that the employee would be leaving work permanently.
• Financial condition of the employer indicates an ability to resume employment.
• History of communications between employer and employee indicates the intention to resume employment.

Are employees who return to work after a labor dispute required to complete a new Form I-9?

No. DHS regulations specifically state that it considers employees returning after a labor dispute to have been continuously employed.

Are seasonal employees required to re-verify their Forms I-9?

No. Seasonal employees do not need to re-verify their Forms I-9. DHS considers such individuals to have been continuously employed.

Are there special rules for employer associations?

Yes. Agricultural associations that refer employees to individual employers are required to complete Forms I-9 for employees referred for a fee to employers. In certain situations, the association can assign the task to the employer as well as to national associations.

Do employers of part-time employees need to complete Forms I-9 for those employees?

Yes. There is no exemption for part-time employees, unless the employee is considered an independent contractor or the person is engaged in casual, nonregular domestic work in a private residence.

Can an employer require job applicants to complete Forms I-9?

No. Employers should only complete Forms I-9 for individuals who have been actually offered employment and accepted, not for individuals applying for jobs.

What privacy protections are accorded employees when they complete Forms I-9?

DHS regulations state that information contained within the Form I-9 may solely be used to verify an individual’s identity and employment eligibility and to enforce immigration law. This regulation presumably prohibits both the government and employers from using information from the Form I-9 for any other purposes.

Employers with electronic Form I-9 systems are required to establish security for those records, ensuring that only authorized personnel have access to the electronic records. The security also needs to ensure that the records are backed up, that employees are trained to minimize the risk of records being altered, and that whenever a records gets creates, accessed, updated, or corrected, a secure and permanent record id created establishing who accessed the record.

Which foreign nationals are always authorized to work in the United States?

It is beneficial to know which types of foreign nationals are entitled to work based on their status in the United States. DHS lists types of cases in which foreign nationals are entitled to work in the United States on the basis of their status:

• Lawful permanent residents (green-card holders).
• Persons admitted as refugees.
• Persons admitted as parolees.
• Persons in asylum status (note that the expiration date on the Employment Authorization Document does not mean the bearer’s work authorization has expired).
• K-1 fiancé€ visa holders.
• N-8 parents and N-9 dependent children processing for permanent residency based on a family member working in the United States for an international organization.
• Certain citizens of the Federated States of Micronesia or the Marshall Islands.
• K-3 spouse visa holders.
• Individuals granted suspension of deportation or cancellation of removal for the period they hold that status.
• Certain persons granted voluntary departure by virtue of membership in a specific nationality group.
• Persons holding temporary protective status (TPS) for the period of time their country’s nationals are granted that status.
• Individuals granted voluntary departure under the Family Unity Program of the Immigration Act of 1990 (IMMACT90).
• Persons granted Family Unity benefits under the Legal Immigration Family Equity ACT (LIFE).
• Persons holding V visa status based on certain family-based green cards filed before 2001.
• Persons holding T visa status as victims of trafficking.
• Persons holding U visa status as victims of certain crimes.
• Persons granted deferred action under the Deferred Action for Childhood Arrivals (DACA) program.
• Persons granted deferred action or an Order of Supervision.

With the only exception of permanent residents who show their Form I-551 or green card, authorization to work in the other categories is demonstrated by an employment authorization card, which is issued by U.S. Citizenship and Immigration Services (USCIS).

Which foreign nationals are sometimes authorized to work in the United States?

Some specific individuals are able to work and live in the United States, as long as they work for a specific employer and meet certain conditions. USCIS states that individuals in the following categories have work authorization based upon possessing a valid Form I-94 instead of an Employment Authorization Document:

• A-1/A-2 foreign government officials (individuals must only work for the sponsoring foreign government entity).
• A-3 personal employees of A-1 or A-2 visa holders.
• C-2/C-3 foreign government officials in transit (individuals must only work for the sponsoring foreign government entity).
• E-1/E-2 treaty investors and traders employed by a qualifying company.
• E-3 visa holders from Australia.
• F-1 students working on campus or engaged in curricular practical training (CPT); CPT employees must have a properly annotated Form I-20 Certificate of Eligibility.
• G-1/G-2/G-3 representatives of international organizations (individuals must only work for the sponsoring foreign governmental entity or international organization).
• G-5 personal employees of G-1/G-2/G-3 visa holders.
• H-1B/H-2A/H-2B/H-3 temporary employees and trainees.
• H-4 visa holders.
• I visa holders as representatives of foreign media organizations.
• J-1 exchange visitors (only within the guidelines set forth in the DS-2019 Certificate of Eligibility form).
• L-1 intracompany transferees.
• O-1/O-2 visa holders who have extraordinary ability in the sciences, arts, education, business, or athletics, and accompanying aliens.
• P-1/P-2/P-3 athletes, artists, or entertainers.
• Q-1 international cultural exchange visitors employed by the Q-1 petitioner.
• R-1 religious employees.
• NATO-1/NATO-2/NATO-3/NATO-4/NATO-5/NATO-6 employees of the North Atlantic Treaty Organization (NATO).
• NATO-7 personal employees of NATO employees.
• TN professionals from Canada and Mexico working pursuant to the North American Free Trade Agreement (NAFTA).
• A-3/E-1/E-2/E-3/G-5/H-1B/H-2A/H-2B/H-3/I/J-1/L-1/O-1/O-2/P-1/P-2/P-3/R-1/TN visa holders who have expired Forms I-94 but have timely filed for an extension (employment authorization continues for 240 days or until the application is denied).

Another group of visa categories allows individuals to apply for employment authorization:

• F-1 students seeking optional practical training (OPT) in their areas of study or because of severe economic hardship (after receiving support of the school’s international student officer).
• Spouses and unmarried dependent children of A-1 and A-2 visa holders.
• Spouses and unmarried children of G-1, G-3, and G-4 international organization representatives.
• J-2 spouses and unmarried minor children of J-1 visa holders.
• L-2 spouses and unmarried minor children of L-1 visa holders.
• M-1 students seeking OPT in areas directly related to their courses of study as recommended by a school official on Form I-20.
• Dependents of visa holders classified as NATO-1 through NATO-7.
• Asylum applicants who have had their cases pending for more than 150 days.
• Applicants with a pending application for adjustment of status to lawful permanent resident.
• Certain applicants with pending suspension of deportation and cancellation of removal cases.
• Parolees admitted on public interest or emergency grounds.
• B-1 visitors who are personal or domestic servants of certain nonimmigrant work visa holders.
• Domestic servants of a U.S. citizen accompanying or following to join the U.S. citizen who has a permanent home or is stationed in a foreign country and who is temporarily coming to the United States.
• Employees of foreign airlines who would otherwise be entitled to ER-1 visa status and who are precluded from E-1 status because they are not of the same nationality as the airline.
• Individuals under final orders of removal and who are released on an order of supervision because their home countries refuse to accept them (such cases are approved at the discretion of USCIS).
• Temporary protected status (TPS) applicants.
• Certain legalization applicants under the Immigration Reform and Control Act (IRCA) and the Legal Immigration Family Equity (LIFE) Act.
• Witnesses or informants in S visa status.
• Q-2 Irish peace process cultural and training program visitors.
• T-1 victims of trafficking and their immediate family members.
• U victims of crime and immediate family members who were included with the petition.
• Persons granted Deferred Action for Childhood Arrivals (DACA) or deferred action.

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