In today’s globalized business world, it is of utmost importance for companies and business owners to adhere to immigration laws and regulations when hiring employees. One crucial aspect of this process is the completion and maintenance of Form I-9, which verifies the identity and employment eligibility of each newly hired employee. By accurately completing this form and ensuring ongoing compliance with I-9 requirements, employers can mitigate the risk of potential penalties and legal consequences. In this article, we will provide you with an overview of Form I-9 requirements to help you understand the importance of compliance in this area of law.
Form I-9 Requirements
The Form I-9 is an essential document used to verify the identity and employment eligibility of individuals hired for employment in the United States. This article will provide a comprehensive guide to understanding the requirements of Form I-9, including who is required to complete it, when it should be completed, how to properly complete it, common mistakes to avoid, and the penalties for noncompliance.
What is Form I-9?
Form I-9, officially known as the Employment Eligibility Verification form, is a document used by employers to verify the identity and employment authorization of individuals hired for employment in the United States. It was created by the U.S. Citizenship and Immigration Services (USCIS) and is mandatory for employers and employees to complete.
Purpose of Form I-9
The primary purpose of Form I-9 is to ensure that individuals hired for employment are authorized to work in the United States. By completing this form, employers are able to comply with the legal requirement to verify the identity and employment eligibility of their employees.
Legal basis for requiring Form I-9
Form I-9 is required by the Immigration Reform and Control Act of 1986 (IRCA), which established the legal framework for the employment of individuals in the United States. The IRCA prohibits employers from knowingly hiring or employing individuals who are not authorized to work in the country.
Difference between Form I-9 and E-Verify
It is important to note the difference between Form I-9 and E-Verify. While both are used for employment verification purposes, they serve different functions. Form I-9 is a document that employers must complete and retain for each employee hired, whereas E-Verify is an optional online verification system that electronically confirms an employee’s eligibility to work.
Who is required to complete Form I-9?
Employers covered by Form I-9
Almost all employers in the United States are required to complete Form I-9. This includes both private and government employers, regardless of the size of their workforce. Even if the employer only has one employee, they must complete and retain a Form I-9 for that individual.
Employee eligibility for Form I-9
All employees, including U.S. citizens, nationals, and noncitizen residents, must complete Form I-9. This includes both full-time and part-time employees, as well as those hired for a certain duration or for a specific project. It is important to note that employees must complete Form I-9 regardless of their immigration or citizenship status.
Exceptions and exemptions
There are a few limited exceptions and exemptions to the Form I-9 requirement. For example, individuals who are hired for casual domestic work in a private household, such as babysitters or gardeners, are not required to complete Form I-9. Additionally, certain categories of employees who were hired before November 7, 1986, are exempt from completing Form I-9.
When should Form I-9 be completed?
Time frame for completion
Form I-9 must be completed within a specific time frame. For employees, Section 1 of Form I-9, which includes the employee information and attestation, must be completed no later than the first day of employment. For employers, Section 2, which involves the employer or authorized representative review and verification, must be completed within three business days of the employee’s first day of employment.
New hires vs rehires
Form I-9 requirements differ slightly for new hires and rehires. New hires are employees who have never been employed by the employer before or whose previous employment records have been purged from the records. Rehires, on the other hand, are employees who were employed by the same employer within three years of the date of rehire. For rehires, employers must complete Section 3 of Form I-9, which involves reverification of employment authorization, if the employee’s previous Form I-9 has expired.
Remote hires and virtual verification
In light of the COVID-19 pandemic and the increase in remote work arrangements, the USCIS has provided temporary rules for employers to verify employment eligibility for remote hires. Employers can conduct remote verification of I-9 documents by video, fax, or email, and employers are required to review and inspect the original documents in person within three business days of the employee’s first day of work.
How to properly complete Form I-9?
Form I-9 instructions
To properly complete Form I-9, employers and employees must carefully follow the instructions provided by the USCIS. The instructions are available on the USCIS website and are also included with the form itself. It is crucial to read and understand the instructions thoroughly to ensure compliance with the Form I-9 requirements.
List of acceptable documents for verification
Form I-9 requires employees to present specific documents to establish their identity and employment authorization. The USCIS provides a list of acceptable documents, which includes passports, permanent resident cards (green cards), driver’s licenses, and social security cards, among others. Each employee must present one document from List A or a combination of one document from List B and one document from List C.
Completing Form I-9 for remote hires
For employers hiring remote employees, the process of completing Form I-9 may be different than for employees present in person. Employers can use remote verification methods such as video calls or email to inspect and verify the employee’s identity and employment eligibility documents. However, it is important to remember that employers must still review and inspect the original documents in person within three business days of the employee’s first day of work.
Internal and external audits of Form I-9
Employers should regularly conduct internal audits of their Form I-9 records to ensure compliance. Internal audits involve reviewing and verifying the accuracy and completeness of the forms. Additionally, employers may also undergo external audits by government agencies, such as the Department of Homeland Security (DHS), to confirm compliance with Form I-9 requirements.
Section 1: Employee Information and Attestation
Employee’s personal information
In Section 1 of Form I-9, employees are required to provide their personal information, including their full name, mailing address, date of birth, and social security number (if applicable). It is important for employees to ensure that the information provided is accurate and matches the supporting documents they present.
Citizenship or immigration status
Employees are also required to indicate their citizenship or immigration status in Section 1 of Form I-9. This includes declaring whether they are a U.S. citizen, lawful permanent resident, or an alien authorized to work in the United States. Employees must also indicate their immigration status, such as their alien registration number or USCIS-issued employment authorization document number, if applicable.
Preparing and signing Section 1
Employees must carefully review Section 1 of Form I-9, ensure that all information is accurate and complete, and then sign and date the form. By signing the form, employees are attesting, under penalty of perjury, that the information provided is true and correct. It is crucial for employees to understand the importance of providing truthful information on Form I-9.
Section 2: Employer or Authorized Representative Review and Verification
Employer’s responsibilities
In Section 2 of Form I-9, employers or their authorized representatives are responsible for reviewing and verifying the employee’s identity and employment eligibility documents. Employers must ensure that the documents presented by the employee are genuine, unexpired, and reasonably related to the employee presenting them.
Document examination and verification
Employers must physically examine the original documents presented by the employee to establish their identity and employment eligibility. The employer or authorized representative must verify that the documents reasonably appear to be genuine and relate to the employee. Employers must record the information from the documents in Section 2 of Form I-9.
Completing Section 2
In Section 2 of Form I-9, employers or their authorized representatives must enter the document title, issuing authority, document number, and expiration date from the employee’s presented documents. The employer or authorized representative must also provide the date that employment begins or the date Section 2 was completed.
Acceptable documents for verification
The USCIS provides a list of acceptable documents for verifying the employee’s identity and employment eligibility. Employers must ensure that the documents presented fall within the designated categories, such as List A documents, List B documents, or List C documents. It is essential to carefully review the list of acceptable documents to ensure compliance.
Section 3: Reverification and Rehires
When is reverification necessary?
Reverification of employment authorization is necessary when an employee’s previous Form I-9 has expired. This typically occurs when an employee’s employment authorization documents, such as an employment authorization card or temporary work permit, expire. Employers must reverify the employee’s documentation on or before the original expiration date.
Reverification process
The reverification process involves completing Section 3 of Form I-9 by examining the employee’s new or updated employment authorization document and entering the required information. Employers must retain the reverification documentation with the employee’s original Form I-9. It is important to note that employees are not required to complete a new Section 1 of Form I-9 during the reverification process.
Rehiring employees with existing Form I-9
If an employee is rehired within three years of the date of their previous Form I-9, employers can generally use the existing Form I-9 for the rehired employee. Employers must review the previously completed Form I-9 to ensure its accuracy and update any necessary information. However, if the employee’s previous Form I-9 is no longer available or is incomplete, a new Form I-9 should be completed.
Common Mistakes to Avoid
Incomplete or missing Form I-9
One of the most common mistakes employers make is failing to complete or retain Form I-9 for their employees. It is crucial for employers to ensure that they have a properly completed Form I-9 for each employee, including both current employees and those who have been terminated. Employers should establish consistent practices to promptly complete and retain Form I-9 for all employees.
Incorrect or expired documents
Employers must carefully review and verify the identity and employment eligibility documents presented by employees. One common mistake is accepting incorrect or expired documents, which can result in noncompliance. Employers should thoroughly examine the documents, ensuring they are genuine, unexpired, and reasonably related to the employee presenting them.
Unlawful discrimination in verification
Employers must avoid any form of unlawful discrimination when verifying employees’ employment eligibility. It is essential to consistently and uniformly apply the verification process to all employees, regardless of their national origin, citizenship status, or immigration status. Discrimination can lead to significant legal consequences and penalties.
Frequently Asked Questions
What happens if an employee refuses to complete Form I-9?
If an employee refuses to complete Form I-9, an employer should not hire or continue employing that individual. Employers have a legal obligation to comply with the Form I-9 requirements, and failure to do so can result in penalties and legal consequences.
Can an employer ask for specific documents for verification?
Employers must allow employees to choose which documents to present from the list of acceptable documents provided by the USCIS. Employers cannot require specific documents as long as the employee presents documents that are acceptable and establish both identity and employment eligibility.
What should employers do if Form I-9 is lost or destroyed?
If a Form I-9 is lost, damaged, or destroyed, employers should attempt to recreate the form to the best of their ability. This can be done by obtaining the employee’s original documents and completing a new Form I-9. Employers should attach a written explanation regarding the loss, damage, or destruction of the previous form.
Can an employer rely on employment eligibility verification done by another employer?
In general, employers cannot rely on the employment eligibility verification done by another employer. Each employer is responsible for completing and retaining their own Form I-9 for each employee. However, if an employer acquires a predecessor’s business, they may be able to rely on the previously completed Form I-9s under certain conditions.
Is it ever too late to correct errors or omissions on Form I-9?
It is never too late to correct errors or omissions on Form I-9. If an employer discovers errors or omissions on a previously completed form, they should make the necessary corrections as soon as possible. Employers should clearly indicate the date of the correction and provide an explanation for the changes made. It is recommended to attach an explanation to the Form I-9.