Although the I-9 form is only two pages1, there are usually an incredible number of errors, most unintentional, by employees and employers. The new form can be found at http://www.uscis.gov/i-9, and must be used for all employees hired since May 7, 2013. Additionally, it may be used for re-verifications, although employers may also use Section 3 of the old I-9 form. The same applies to re-hires, who can use Section 3 of old I-9 form or the new I-9 form.
A. Section 1
Section 1 must be completed, signed and dated by the employee on the first day of employment (or beforehand as long as it is after an offer of employment). The requested data is fairly simple – name, including maiden name, if applicable; address (not P.O. Box); date of birth; Social Security number (though not required unless using E-Verify); email address and telephone (both optional) and status. Status options are:
- U.S. citizen;
- lawful permanent resident including Alien (“A” number);
- work authorization document (EAD) with A number and expiration date of authorization; or
- U.S. national (born in Northern Mariana Islands, Marshall Islands, or Micronesia)
B. Section 2
The Employer must complete Section 2 within three days of hire (use the Thursday rule – if the first day of work is Monday, the I-9 must be completed by Thursday)2. The employer fills in information in List A or Lists B and C based upon acceptable document(s) listed on the backside of the I-9 form. The most common List A documents are a U.S. passport, permanent resident card and work authorization card. For List B – a driver’s license or state identification and for List C – a Social Security card or government-issued birth certificate (not a hospital-issued certificate no matter how cute it is). The employer may not direct the employee to present a specific document(s)3. After the information is completed, the employer representative must certify the examination of document(s) with a signature, company name and address, representative’s title and the date employment began.
C. Section 3
Section 3 is utilized for several purposes – re-verification of an employee’s EAD, which is due to expire; when an employee is rehired within three years of original hire date, an employer may use Section 3, if the I-9 edition has not expired, or opt to use a new I-9; and when an employee receives a new last name through marriage or divorce (though this is not required).
Section 3 potentially could cause many employers difficulties if they do not timely re-verify certain groups of employees, such as H-1B visa holders. Failure to re-verify an employee whose employment authorization has expired means the employer is “knowingly” employing an undocumented worker, which subjects the employer to costly penalties.
Employers should never re-verify these forms of identification, however, even if they expire after the worker was hired: (1) Permanent Resident cards; (2) U.S. Passports; or (3) Driver’s licenses or state-issued identification documents.
D. Employer’s Responsibilities and Guidelines
Employers are responsible for ensuring Section 1 is properly completed by employee as well as correctly filling out Sections 2 and 3, if necessary (as explained above). Even though employees must complete Section 1, ICE will not fine an employee for an error.
An employer also has these rules it must follow:
- Do not ask a job applicant to fill out an I-9 form until an offer of employment has been made;
- Do not tell the employee which documents to present; and
- Do not accept an expired document for List A, B or C.
1 Before March 9, 2013, it was one page.
2 If an Employee is being hired for less than a three-day period, Sections 1 and 2 must be complete on the day of hire and the employee must present their documents on the day of hire.
3 This type of conduct could cause a violation of the INA, which would be investigated by the Office of Special Counsel (OSC) for Unfair Immigration-Related Employment Practices based upon an employee’s charge.