U.S. employers are required by law to verify the identity and employment authorization of each individual they hire after November 6, 1986, for employment in the United States by completing, Form I-9, Employment Eligibility Verification.
Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States, or who fail to comply with employment authorization verification requirements, may face civil and, in some cases, criminal penalties. Form I-9 must be completed for each newly hired employee, including U.S. citizens, permanent residents, and aliens authorized to work in the United States, to demonstrate the employer’s compliance with the law and the employee’s work authorization. Through the Form I-9 process, employers verify, in a nondiscriminatory manner, whether their employees possess proper authorization to work in the United States
Who is responsible for completing the different sections of Form I-9?
The employee must complete Section 1, Employee Information and Verification, of Form I-9. The employee must attest that he or she is a U.S. citizen or national, a lawful permanent resident, or an alien authorized to work in the United States. The employee must present documentation to the employer establishing identity and employment authorization by choosing from the documents listed on the most current “Lists of Acceptable Documents.” The employer is obligated, after physically examining the documents presented by the employee, to complete Section 2, Employer Review and Verification, or Section 3, Reverification and Rehires (if applicable), of Form I-9.
When should Section 1 of Form I-9 be completed?
Each newly hired employee should complete and sign Section 1 no later than the first day of employment, regardless of his or her immigration status. “First day of employment” refers to the first day of work in exchange for pay or other remuneration.
When should Section 2 of Form I-9 be completed?
Employers or their authorized representative must complete Section 2 by physically examining evidence of identity and employment authorization within 3 business days of the employee’s first day of employment. For example, if an employee begins employment on Monday, the employer must complete Section 2 by Thursday of that week. However, if an employer hires an individual for less than 3 business days, Section 2 must be completed no later than the first day of employment.
What documents must the employee present?
The employee may present documents of their choosing from those listed on the most recent Lists of Acceptable Documents, which can be found on the last page of the Form I-9. The employee must present either one document from List A, or two documents—one from List B and one from List C:
- List A (documentation establishing both identity and authorization to work)
- List B (documentation establishing only identity)
- List C (documentation establishing only authorization to work).
The employer must physically examine the documentation establishing identity and employment authorization that the employee presents. Originals (not copies) must be examined. The one exception is the birth certificate, which can be a certified copy.
In certain instances, the employee may present acceptable “receipts” in lieu of original documents in the Form I-9 process. For example, if an individual’s document has been lost, stolen, or damaged, then he or she can present a receipt for the application for a replacement document. The replacement document must be presented to the employer within 90 days of hire.
When should Section 3 of Form I-9 be completed?
Employers should complete Section 3 of Form I-9 when re-verifying expired employment authorization or in certain rehire situations. Reverification applies to those employees whose employment authorization (or evidence thereof) expires and is a way to verify that such employees are still authorized to work. When rehiring an employee within 3 years of the date Form I-9 was originally completed, employers have the option to complete a new Form I-9 or complete Section 3 of the most current version of Form I-9. When completing Section 3 in either a reverification or rehire situation, if the employee’s name has changed, you may record the name change in Block A of Section 3.
For employees who attest in Section 1 that their employment authorization expires, employers must reverify employment authorization on or before that date.
Employers must also reverify employment authorization if an employee’s List A or List C employment authorization document presented in Section 2 (or a previously completed Section 3) expires. However, employers should not reverify U.S. citizens and nationals or lawful permanent residents who presented a Permanent Resident Card (Form I-551) for Section 2. Reverification does not apply to List B documents.
If you rehire your employee within 3 years of the date that a previous Form I-9 was completed, you may complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9.
Can I tell an employee what identity and employment authorization documents to present for Form I-9?
No, an employer cannot tell an employee which documents to present for Form I-9 purposes. Employers should direct the employee to the Lists of Acceptable Documents on the Form I-9. However, an employer can reject a document that an employee has chosen to present if, following the employer’s examination of the original document, the employer determines that the document does not reasonably appear to be genuine or to relate to the employee.
How do I know if a document is genuine or false?
The law requires that an employer examine the original document (not a photocopy) and make a determination that the document reasonably appears to:
- Relate to the employee, and
- Be genuine
It is important to note that improperly rejecting a document could result in a violation of the anti-discrimination provisions of immigration law, so employers should carefully examine documents before deciding to reject them.
Can employers examine photocopies of identity and employment authorization documents?
No, employers must review original documents. The only exception is the birth certificate, which can be a certified copy and must bear an official seal.
How long should Form I-9 be retained?
Employers must retain an employee’s Form I-9 for as long as the individual works for the employer. Once the individual’s employment has terminated, the employer must determine how long after termination the Form I-9 must be retained. The length of retention after the individual’s employment has terminated is either 3 years after the date of hire (i.e., the date that employment began), or 1 year after the date employment is terminated, whichever is later. While employers are not required to make copies of the original documents examined for Form I-9, employers who do so must store the copies for the retention period.