While many think of Form I-9 as just another on-boarding form to complete just like a Form W-4, it is essential to understand the importance of it.
Form I-9, Employment Verification, is a DHS form required by law after the enactment of the Immigration Reform and Control Act (IRCA) of 1986. It requires employers to verify the identity and employment eligibility of hires, and it also established criminal and civil sanctions for employment-related violations.
Form I-9 is required for all employees in the U.S., and it verifies 2 specific areas:
- First, it verifies the employee’s identity, proving — with supporting documents — that they are who they say they are
- Second, it verifies the employee’s authorization to legally work in the United States.
The form requires employers to visually see employee identification and authorization forms, and attest the forms are legitimate. Employees are required to complete Section 1 of Form I-9 on their first day of employment, and an employer must complete Section 2 of Form I-9 within three (3) business days of the employee’s start date. For example, if an employee’s first day is on Monday, Section 1 must be completed on Monday, and Section 2 must be completed by Thursday.
For U.S. citizens, non citizen nationals (US nationals), and lawful permanent residents, you do not need to reverify their employment authorization after completing their Form I-9. For nonimmigrant workers (such as an H-1B worker), you will need to reverify their employment authorization by/on the expiration of their work authorization at the time Section 2 of their I-9 was completed. For example, an employee who completes their I-9 in January and provides an Employment Authorization Document (Form I-766, or “EAD card”) that expires on June 10th, will need to have their I-9 reverified by completing Section 3 by no later than June 10th.
It is important to remember that when completing the I-9 process for an employee, you cannot request specific documents, such as a Driver’s License, a U.S. passport, ect. It is illegal under federal law to specify which documents an employee presents for the purposes of completing Form I-9, or otherwise discriminate against a worker for presenting valid documentation that may contain an expiry date. An employee must be allowed to present any List A, or a combination of Lists B and C documents to demonstrate their employment authorization. You may only reject an employee’s documents, and in doing so request an alternative document, when the document does not reasonably appear to be genuine or to relate to the individual presenting them.
Once you have completed an employee’s Form I-9, you must continue to retain their completed I-9 for the duration of their employment, plus an additional retention period after the employee stops working. For employees that worked for less than two years, their I-9 must be retained for three years after the first day of employment, as indicated in Section 2 of their I-9. For employees who have worked for two years or more, their I-9 must be retained for one year after they stop working.
It is important to ensure that you not only complete and retain your I-9s, but that you complete them correctly. Various federal departments and agencies, including but not limited to the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and the Department of Labor (DOL), may conduct audits of your I-9 records. Civil penalties, including but not limited to fines, can be assessed for employers who are found to be non-compliant with I-9 documentation.
The official I-9 Handbook for Employers (M-274), which contains illustrative examples and sample documents can be found here.