ABCs of Immigration: Form I-9 General Concepts

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

What is the basis for employment verification?

In 1986, Congress was debating issues which are still, to this day, unresolved regarding illegal immigration and the strategies the government can use to gain control over the border. In 1986, the debate was paused with the enactment of the enactment of the Immigration Reform and Control Act (IRCA).

Integral to the IRCA is the section which creates a sanctions system requiring all employer in the United States to verify the identity and employment authorization of all employees hired in the wake of the passing of the law in 1986. Employers have become an essential aspect of the immigration enforcement process by assuming responsibility for verifying their employees are in the country legally. Shortly after the law’s passing, the Immigration and Naturalization Service (legacy INS) created Form I-9, Employment Eligibility Verification, in order to document that the employer has adhered to its IRCA obligations. It is prohibited for employers to “knowingly” hire unauthorized workers, and properly completing the Form I-9 is the method for employers to show a lack of knowledge of a particular employee’s ineligibility to work.

Along with the provisions sanctioning employers which fail to verify their worker’s employment authorization and identity are provisions prohibiting certain immigration-related employment practices by the employer. These include engaging in discrimination based on citizenship status, national origin, or forcing non-U.S. citizens to provide certain or more documents than U.S. citizens, known as unfair documentary practices though previously referred to as document abuse. Employees are also protected from retaliation if they file a complaint using the anti-discrimination rules.

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

Though the U.S. Department of Justice (DOJ) was initially responsible for compliance enforcement for the IRCA’s employer sanction rules, this responsibility was transferred to U.S. Immigration and Customs Enforcement (ICE) with the creation of the Department of Homeland Security in 2002.

What is the Form I-9?

The Form I-9 is a two-page form, potentially with a third supplemental page, which employees and employers complete to verify the identity of the employee and to demonstrate they are authorized to work in the United States. The form is divided into three sections:

• Section 1 includes the employee’s basic biographical information and asks the employee to certify that he or she is a citizen, noncitizen national, permanent resident, or an individual authorized to work under another status.
• Section 2 needs to be filled out by the employer, and it requires the employer to verify and attest, under penalty of perjury, which documents the employee presented to establish his or her identity and work authorization, and that the paperwork was completed in a timely manner. Employees can reference the “Lists of Acceptable Documents.” For example, List A provides documents which can establish both identity and work authorization, such as a U.S. passport or 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 birth certificate, establishing the individual’s employment authorization.
• Section 3 only needs to be filled out by employers that need to periodically re-verify the Form I-9 if the employee is not authorized to permanently work in the United States. Alternatively, it can be used to rehire an employee under certain situations and updating an employee’s name after it has changed.

On July 17, 2017, the Form I-9 was updated, and all employers must use that version for new hires as of September 18, 2017. This updated version of the form does not have any content changes from the previous version, rather it adds one document to List C of Acceptable Documents, Consular Report of Birth Abroad (Form FS-240) and lists it in combination with Form FS-545 and Form DS-1350. The new version also has a few areas of revision in the instructions.

The previous Form I-9, dated November 14, 2016, made significant changes, including a third method of completing the form. In addition to the paper and electronic methods, it became possible with this version to complete what is called the “smart” Form I-9, which can be completed on a computer screen using an Adobe Acrobat reader then printed out to be signed by the employee and employer in the appropriate places. In addition to the “smart” Form I-9, the November 14, 2016 version implemented the following changes:

1. Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used,” in order to prevent employees from inputting their nicknames in this field;
2. Modifying Section 1 to request certain employees enter either their I-94 number or foreign passport number as opposed to both;
3. Requiring clarification on whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form. Though the numbers are the same, more recent green cards refer to the number as USCIS);
4. Requiring “N/A” to be inserted when information is not applicable instead of leaving the field blank;
5. Permitting an employee to use a P.O. box for an address;
6. Though either is still optional, allowing the use of a work or personal e-mail address;
7. Adding a supplemental third page if using multiple preparers and/or translators; and
8. Adding an area in Section 2 for the addition of information for temporary protected status (TPS) extensions, optional-practical-training (OPT) science-technology-engineering-math (STEM) extensions, and H-1B portability to avoid needing to note this information in the margins of the Form I-9.

 

The March 8, 2013 Form I-9 was a stark change from the version before it, with the most obvious change being its implementation of the two-page form. Other changes include:

• Giving employees the option of providing an e-mail address, to directly notify an employee of a tentative nonconfirmation in E-Verify, and/or a telephone number;
• Clearer spaces for information in Sections 1 and 2; and
• Retitling Section 3 from “Updating and Reverification” to “Reverification and Rehires.”

When must the Form I-9 be completed?

The Form I-9 process must be initiated on or before the day an employee begins working. The first section must be completed on the first day of employment and the employee has to provide the supporting documents noted on the “Lists of Acceptable Documents” within three business days of the first day of employment. Therefore, if an employee’s first day of employment was a Monday, for example, Section 2 must be completed by Thursday. If the employee fails to provide the documents within that time period, the employee must be removed from payroll. An employer may choose to merely suspend the employee rather than terminating the employee altogether. If possible, it is permissible for the employer and employee to fill out the Form I-9 on the first day of employment. According to the DHS’ Handbook for Employers: Guidance for Completing Form I-9, M-274, it is required the employee to have been offered and accepted the job and that the form cannot have been used in the screening process. If the form is used in such a manner, the employer can be charged with national-origin and/or citizenship discrimination.

The previously mentioned supporting documents three-day requirement is also applicable to recruiters and recruiters for a fee and state employment agencies.

What is the employee is being hired for a period of time shorter than three days?

Such employees will need to fill out Section 1 on the day of hire and provide the supporting documents on the day they are hired. Employers are also required to sign the verification attestation the day the employee is hired.

Generally, what are the Form I-9 requirements for employers?

There are, essentially, six requirements for employers and others required to retain Forms I-9:

1. Have employers properly and completely fill out Section 1 of the Form I-9 no later than the date of hire.
2. Review the required documents to ensure the documents verifying identity and employment authorization appear genuine and that they are applicable to the individual who presented them.
3. Properly complete Section 2 of the Form I-9 and sign and date the employer certification within three business days of the commencement of employment.
4. Retain the Form I-9 for the required retention period.
5. Re-verify employment authorization for employees who present a time-limited Employment Authorization Document (EAD) or other type of time-limited document.
6. Maintain the Forms I-9 so that they may be made available for inspection by the United States Department of Homeland Security (DHS), United States 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 Immigration-Related Unfair Employment Practices (OSC)), or the United States Department of Labor (DOL).

 

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

No. In addition to employers, agricultural associations and farm labor contractors are required to fill out Forms I-9 for individuals recruited or referred for a fee. Not included in the terms “refer for a fee” or recruit for a fee” are union halls that refer union members and nonunion members.

It is permissible for recruiters and referrers to designate agents, including national associations and the actual employers of the employees, to manage the I-9 process for them. If it is the employer who is designated as responsible for the I-9 process, the employer must provide the recruiter or referrer with a copy of the Form I-9. It is also still the recruiter or referrer who is liable for any violations of the IRCA.

Recruiters and referrers who are subject to the Form I-9 rules must adhere to the timing and record-keeping requirements previously outlined. They also must make the Forms I-9 available for officers of 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 Immigration-Related Unfair Employment Practices (OSC)), or the U.S. Department of Labor (DOL). Furthermore, any fines and penalties which are applicable to employers also apply to these recruiters and referrers.

A few state employment agencies also certify applicants they refer to employers. State employment agencies may decide to provide employees with certification of employment authorization, and as long as the agency seeker referring a job seeker to an employer submits a certification of employment within 21 days of that referral, the employer is not required to fill out a Form I-9. However, employers still need to check the certification to make sure it refers to the person who was actually hired and retain the certification as they would if it were a Form I-9.

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

If a state employment agency wants to refer an individual who has previously been certified, the state agency can utilize the previous Form I-9 as long as the individual is still authorized for employment and the referral takes place within 3 years of the completion of the initial Form I-9. State agencies need to retain the Form I-9 for a minimum of 3 years from the date the employee was last referred and hired.

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

Employees need to fill out Section 1 of the Form I-9 which includes the submission of the employee’s name, address, date of birth, and other names used, as well as whether the employee is a U.S. citizen or national, lawful permanent resident, or an alien with employment authorization. The employee may also provide his or her e-mail address, telephone number, and Social Security Number, though if the employee uses E-Verify, the Social Security Number is mandatory. If a permanent resident, the employee must provide an “Alien number.” Additionally, if the employee is an alien with employment authorization, he or she is required to submit his or her alien or admission number and, if applicable, the expiration date of the employment authorization, or the country of his or her foreign passport and number along with a Form I-95/94A Arrival-Departure Record bearing the same name that is on the passport and containing an endorsement of the individual’s nonimmigrant status and authorization to work for a specific employer and the expiration date of the employment authorization. Employees have to sign and date Section 1, attesting to the truthfulness of the statements and documents enclosed.

It is also required that employees provide the employer, recruiter, referrer for a fee, or referring state agency with documentation from the “Lists of Acceptable Documents” in order to establish the individual’s identity and employment authorization.

Are there any employees nor required to complete the I-9 Form?

All employees hired after November 6, 1986 are required by the Immigration Reform and Control Act (IRCA) to complete I-9 verification paperwork. The Form I-9 requirement is applicable to all employees, including U.S. citizens and nationals. Employees who are not hired are exempt from completing Forms I-9, and employers who selectively choose who will and will not fill out Forms I-9 could face penalties under anti-discrimination rules. Since volunteers do not receive remuneration for services performed, they do not have to comply with Form I-9 rules. While independent contractors are not subject to Form I-9 rules, employers should be aware that if they are to outsource work to companies they are aware utilize unauthorized employees, they could also be held liable under the IRCA. Individuals who are transferring within a company do not need to fill out a Form I-9, and employees who are re-hired by a company do not need to complete a new Form I-9, provided they resume work within 3 years of the completion of the initial Form I-9. However, it is legal for an employer to decide that the rehire has to complete a new Form I-9. The following are situations in which it is unnecessary to complete a new Form I-9:

• Upon the completion of an employee’s paid or unpaid leave, for example illness or vacation.
• After a temporary layoff.
• After a strike or labor dispute.
• Gaps between seasonal employment.

For further reading, including whether Forms I-9 are required for independent contractors or domestic service employees, view Chapter 1 in The I-9 and E-Verify Handbook

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