I-9 Process

  1. Importance of I-9 Compliance
  2. Who is an Employee?
  3. Verifying Employment Eligibility
  4. Frequently Asked Questions
  5. Misc. I-9 Fine Information
  6. An Example

1. Importance of I-9 Compliance

The Immigration Reform and Control Act of 1986 (IRCA) requires that employers verify the identity and eligibility for employment of every employee they hire. Unfortunately, identifying whether an employee is authorized for employment can prove tedious and confusing. However, employers must resist the urge to take short cuts or ignore I-9 issues because failing to comply can lead to hefty fines and additional civil and/or criminal penalties.

2. Who is an Employee?

The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not encompass independent contractors or those engaged in casual domestic employment. An independent contractor is an individual or entity who carries on independent business, contracted to do a piece of work according to their own means and methods, and are subject to control only as to results. Some factors that usually define an independent contractor include: setting their own hours; supplying their own tools and equipment; paid on a project basis; do not receive benefits such as health insurance or paid vacation.

If an individual is considered an independent contractor, an employer does not need to verify employment eligibility nor complete the I-9 Employment Eligibility Verification Form.

3. Verifying Employment Eligibility

The Form I-9, Employment Eligibility Verification is the requisite form to confirm the employment eligibility of workers.    The I-9 is divided into three sections. Section 1 needs to be completed by the employee and can become a potential problem if the employee does not complete this section properly.  Sections 2 and 3 must be completed by the employer.

The most important section of the I-9, and most likely the most confusing, is Section 2. This section requires the employer to verify evidence with respect to both the identity and employment eligibility of the individual. According to the regulations, the employer must physically examine the documentation presented by the individual establishing identity and employment eligibility within three business days of the hire. The lists of acceptable documents to prove identity and employment eligibility are itemized on the I-9 form into List A, List B and List C:

  • List A – List A catalogs documents that are acceptable to confirm both identity and employment eligibility.
  • List B – List B catalogs documents that are acceptable to establish identity only.
  • List C – List C catalogs documents that are acceptable to establish employment authorization only.

Note:  Remember that the employer must verify both identity and eligibility. Therefore, when examining the documents provided, the employer must make sure the employee has provided either a document from List A or both a document from List B and a document from List C. Although employers are not required to be document experts, employers should analyze each document for obvious signs of forgery or alterations.  In addition, employers should be very cautious about insisting on more documentation than is necessary or requesting documentation different from what is listed in the I-9. This could be considered a violation of IRCA’s anti-discrimination provisions.

4. Frequently Asked Questions

What is the I-9?

  • The Employment Eligibility Verification Form I-9 is a U.S. Citizenship and Immigration Services form to be used by an employer to verify that the employee is eligible to accept employment in the United States.

Where can I find a copy?

  • Online at www.uscis.gov
  • Call Customer Service at 1-800-870-3676

What is the current version?

  • The current version is the Form I-9 (Rev. 08/07/09).  This is noted on the bottom right hand side of the form.
  • Note: This form will be valid beyond its current expiration date of June 30, 2009 per USCIS.

Is there a Spanish version of the I-9?

  • Yes.  A Spanish version is available online at www.uscis.gov.
  • The Spanish version of Form I-9 may be filled out by employers and employees in Puerto Rico ONLY.
  • Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but employers must use the English version.

Who needs to fill out an I-9?

  • All employers including temporary agencies, with an attestation by the employee.

Which employees do you need an I-9 for?

  • All new employees (citizens and noncitizens) hired to work in the United States.

When must an I-9 be completed?

  • An I-9 must be completed within 3 business days of the date employment begins.
  • Note: This is the latest point at which the I-9 may be completed.  The earliest an I-9 can be completed is after you have made a job offer and the employee has accepted.

What documents are required?

  • ONLY the documents listed on the back of I-9 are acceptable.  Need either one document from List A or one document each from List B and List C.
  • Note: The employee must present original documents
  • Note: You cannot use expired documents to satisfy these requirements.
  • If the required document is unavailable, the employee must present an acceptable receipt within three days of the date employment begins and must present valid replacement documents within 90 days or other specified time.  This is often referred to as the “Receipt Rule”.
    • USCIS receipt for initial Employment Authorization Document (EAD) or its renewal is NOT acceptable.
    • USCIS approval notice for EAD is NOT acceptable.

Can I choose which documents to accept?

  • No.  Refusal to accept certain documents or to specify acceptance of only a few documents may constitute illegal discrimination.

Do I need to make a photocopy of the documents I inspect?

  • Employers, may, but are not required to photocopy the documents presented.
  • Photocopies must be kept with the retained I-9.
  • Note: If you choose to copy documents, you must copy documents for all new hires.

Do I need to file the I-9 with any governmental agency?

  • No.

How long do I need to keep I-9’s for employees?

  • I-9’s must be retained by employers for three years after the date of hire or one year after the date employment ends, whichever is later.  The forms must be available for inspection by US Government officials.

How can I store the I-9?

  • The I-9 may be signed and retained electronically or kept in hardcopy.

When must the I-9 be updated or re-verified?

  • If the document provided for eligibility has an expiration date (i.e. a work permit), the employer must re-verify employment eligibility on or before the date of expiration.
  • If an employee is rehired within three years of the date the I-9 was originally completed, and the employee is still authorized to be employed, the employer must update the I-9 and can do so by completing Section 3, Block B.
  • Note: If re-verifying or updating and using current version of I-9, complete Section 3, Block C with the new information and sign on the same I-9.
  • Note: If re-verifying or updating and using a previous version of I-9 form, you must use the new I-9 form and complete Section 1 and 2.
  • Note: Employers can always complete a new I-9 to ensure compliance.
  • Note: Always use the most current list of accepted documents for eligibility.

What is E-Verify?

  • E-Verify is a way to further verify an employee’s eligibility for employment in the United States.  The system provides an automated link to federal databases to help employers determine the employment authorization of new hires and is a free service to employers.  Enrollment information can be found at www.uscis.gov.
  • Note: If enrolled, you must use E-verify for all new hires.

Where can I get more information?

  • Online at www.uscis.gov, you can find: “Handbook for Employers: Instructions on Completing Form I-9 (Employment Eligibility Verification Form)”

5. Misc. I-9 Fine Information

Fine for a First Offense, INA §274A

  • An employer found to have knowingly hired, recruited or referred for a fee, or continued to employ, an unauthorized alien for employment in the United States shall be subject to an order to cease and desist from the unlawful behavior and to pay a civil fine.

For hiring and/or continuing to employ, INA §274A(e)(4)

  • For the first offense, if occurred before March 27, 2008, the employer can be fined $275-$2,200 per unauthorized alien with respect to whom the offense occurred.  If the first offense occurred after March 27, 2008, the employer can be fined $375-$3,200 per unauthorized alien with respect to whom the offense occurred.
  • In determining the level of civil monetary penalties that will be imposed, a finding of more than one violation in the course of a single proceeding or determination will be counted as a single offense.

For paperwork violations, INA §274A(e)(5)

  • For the first offense, if occurred before September 29, 1999, the employer can be fined $100-$1,000 per unauthorized alien with respect to whom the offense occurred.  If the first offense occurred after September 29, 1999, the employer can be fined $110-$1,100 per unauthorized alien with respect to whom the offense occurred.
  • In determining the amount of the penalty, the following factors are considered: size of the business of the employer being charged; good faith of the employer; seriousness of the violation; whether or not the individual was an unauthorized alien; and the history of previous violations by the employer.

6. An Example

Issue:  An employer hires an individual on a good faith basis and complies with I-9 requirements.  Employer recently learned that the social security information was invalid and that the employee was not authorized to work.  The employer elects to continue to employ the individual.  What is the maximum fine the employer can be subject to?  This employer has never employed an unauthorized individual before.

  • For hiring and/or continuing to employ an individual without authorization to work. INA §274A (e)(4); 8 C.F.R. 274a.10(b)(1)(ii)(A).

These facts involve a “continuing to employ” offense that occurred after March 27, 2008.  The employer can be fined from $375 up to $3,200 per unauthorized alien.

In determining the level of civil monetary penalties that will be imposed, a finding of more than one violation in the course of a single proceeding or determination will be counted as a single offense.

  • For paperwork violations related to the preparation of the I-9. INA §274A (e)(5) ; 8 C.F.R. 274a.10(b)(2).

If the employer is found to have failed to properly complete, retain, and/or make available for inspection the I-9 of the individual described above, they may be subject to additional civil monetary penalties.  Since this offense occurred after September 29, 1999, the employer can be fined from $110 up to $1,100 per unauthorized alien.

In determining the amount of the penalty, the following factors are considered: size of the business of the employer being charged; good faith of the employer; seriousness of the violation; whether or not the individual was an unauthorized alien; and the history of previous violations by the employer.

  • For “pattern or practice” violations. INA §274A (f)(1); 8 C.F.R. 274a.10(a).

Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States, may be fined up to $3,000 per unauthorized employee and/or face up to six months imprisonment.

This section should not be applicable to this employer since they have not engaged in a pattern or practice and this is their first violation.

  • Summary:

For continuing to employ the individual described above, the maximum fine that the employer could be exposed to is $4,300.  Both violations (continuing to employ and paperwork violation [if applicable]) would count as a single offense and therefore, be within the “First Offense” category.

7. References

  • INA §274A
  • 8 C.F.R. §274a

Revised by Nisha V. Fontaine, Esq. on December 26, 2011.