Form I-9, officially known as the Employment Eligibility Verification, is a United States Citizenship and Immigration Services form. Mandated by the Immigration Reform and Control Act of 1986, it is used to verify the identity and legal authorization to work of all paid employees in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including citizens and noncitizens.
Both employees and employers (or authorized representatives of the employer) must complete the form. On the form, an employee must attest to their employment authorization. The employee must also present their employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9.
Understanding Form I-9
The Form I-9 consists of three sections. The first section is filled out by the employee and includes personal information, citizenship status, and an attestation of their eligibility to work. The second section is completed by the employer and involves the verification of the documents provided by the employee. The third section is used for re-verifications and rehires.
It's important to note that while Form I-9 is a federal requirement, it does not serve as a work permit. Rather, it is a verification form that confirms that an employee is authorized to work in the U.S. based on the documents they have provided. Failure to properly complete, retain, and make available for inspection Forms I-9 can result in civil fines and potential criminal penalties for the employer.
Section 1: Employee Information and Attestation
In the first section of Form I-9, the employee provides their full legal name, address, date of birth, and Social Security number. They must also indicate their citizenship status by checking whether they are a U.S. citizen, a non-citizen national, a lawful permanent resident, or an alien authorized to work until a specific date.
The employee must then sign and date the form, attesting under penalty of perjury that the information they have provided is true and correct. If the employee used a preparer or translator to fill out the form, that individual must also provide their information and sign and date the form.
Section 2: Employer or Authorized Representative Review and Verification
In the second section of Form I-9, the employer or an authorized representative must review the documents presented by the employee to verify their identity and employment eligibility. The employer must physically examine each document to ensure that it reasonably appears to be genuine and relates to the employee presenting it.
The employer then records the document title, issuing authority, number, and expiration date, if any, for each document presented. They must also provide the date employment begins, sign and date the form, and provide their title, name, and address.
Section 3: Reverification and Rehires
Section 3 of Form I-9 is used in specific situations, such as when an employee's employment authorization or documentation of employment authorization has expired, when an employee is rehired within three years of the date that a previous Form I-9 was completed, or when an employee changes their name.
In these cases, the employer or authorized representative must review updated documents from the employee, record the document title, issuing authority, number, and expiration date, if any, and sign and date the form. If the employer used a different name when a previous Form I-9 was completed, they must provide the original name under which they completed the previous form.
Acceptable Documents for Form I-9
When completing Form I-9, employees must present documents to their employer that prove both their identity and their eligibility to work in the U.S. The list of acceptable documents is divided into three categories: List A documents establish both identity and employment authorization; List B documents establish identity only; and List C documents establish employment authorization only.
Employees can choose which documents to present from the lists of acceptable documents. They can present one document from List A, or one document from List B and one from List C. Employers cannot specify which document(s) they will accept from an employee.
List A Documents
List A documents are those that establish both identity and employment authorization. They include U.S. Passport or U.S. Passport Card, Permanent Resident Card or Alien Registration Receipt Card (Form I-551), Foreign Passport with a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa, Employment Authorization Document that contains a photograph (Form I-766), and more.
For minors and certain employees with disabilities who cannot present a document from List A, special rules apply. They can present a combination of a document from List B that establishes identity and a document from List C that establishes employment authorization.
List B Documents
List B documents are those that establish identity only. They include Driver's license or ID card issued by a state or outlying possession of the United States, ID card issued by federal, state, or local government agencies or entities, School ID card with a photograph, Voter's Registration Card, U.S. Military card or draft record, and more.
For individuals under the age of 18 who are unable to present a document from List B, the List B document may be a school record or report card, clinic, doctor, or hospital record, or day-care or nursery school record.
List C Documents
List C documents are those that establish employment authorization only. They include Social Security Account Number card, Certification of Birth Abroad issued by the Department of State (Form FS-545), Certification of Report of Birth issued by the Department of State (Form DS-1350), Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the U.S. bearing an official seal, and more.
It's important to note that a receipt showing the employee has applied for a replacement document that was lost, stolen, or damaged can be used for Form I-9 purposes for a reasonable amount of time, typically 90 days.
Form I-9 and E-Verify
E-Verify is an internet-based system that compares information from an employee's Form I-9 to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. While it is voluntary for most employers, some employers may be required to use E-Verify depending on their state law or federal contract.
While Form I-9 and E-Verify are related, they are not the same. Form I-9 is a document that is required for all employees, while E-Verify is a system that is used in addition to the Form I-9 and is not required for all employers. E-Verify cannot be used in place of Form I-9.
How E-Verify Works
After an employee completes Form I-9, the employer enters the employee's information into E-Verify. E-Verify then compares this information to records available to the U.S. Department of Homeland Security and the Social Security Administration. If the information matches, the case will receive an Employment Authorized result almost immediately, which means the employee is eligible to work in the United States.
If the information does not match, the case will receive a Tentative Nonconfirmation (TNC) result. The employer must then give the employee an opportunity to contest the result, and the employee must visit a Social Security Administration (SSA) or Department of Homeland Security (DHS) office to resolve the issue. If the employee does not contest or the issue is not resolved, the case will receive a Final Nonconfirmation result, and the employer may terminate employment.
Benefits of Using E-Verify
Using E-Verify can provide several benefits for employers. It provides a fast and accurate means of verifying an employee's identity and employment eligibility. It also reduces the risk of hiring unauthorized workers and facing penalties for non-compliance with Form I-9 requirements. Additionally, it can improve the accuracy of wage and tax reporting.
However, employers should also be aware of the potential challenges of using E-Verify. These include the time and resources required to use the system, the potential for errors, and the need to train staff on the system. Employers should weigh these considerations carefully before deciding to use E-Verify.
Form I-9 Compliance and Penalties
Compliance with Form I-9 requirements is critical for employers. Employers are required to retain original I-9 forms 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 authorized U.S. Government officials.
Failure to comply with Form I-9 requirements can result in civil fines, criminal penalties, and debarment from government contracts. The amount of the fine can vary depending on the severity of the violation, the size of the employer, and the employer's good faith efforts to comply.
Common Mistakes and How to Avoid Them
Common mistakes on Form I-9 include not fully completing the form, not signing the form, not reviewing the correct documents, and not updating the form when necessary. To avoid these mistakes, employers should carefully review the Form I-9 instructions, train staff on Form I-9 requirements, and regularly audit their I-9 forms.
Employers can also use the U.S. Citizenship and Immigration Services' I-9 Central website for resources and guidance on Form I-9. This includes a detailed handbook for employers, frequently asked questions, and the latest news and updates on Form I-9.
Penalties for Non-Compliance
Penalties for non-compliance with Form I-9 requirements can be severe. Civil fines can range from $230 to $2,292 per form for paperwork violations, and from $573 to $20,130 per worker for knowingly hiring or continuing to employ unauthorized workers. Criminal penalties can include fines and imprisonment for engaging in a pattern or practice of hiring, recruiting, or referring for a fee unauthorized workers.
In addition to these penalties, employers can also face other consequences for non-compliance, such as reputational damage, loss of business, and increased scrutiny from immigration authorities. Therefore, it's crucial for employers to take Form I-9 compliance seriously and take steps to ensure they are meeting their obligations.
Form I-9 is a critical document for all U.S. employers. It serves as a tool to verify the identity and employment authorization of all employees, both citizens and noncitizens. Proper completion and retention of Form I-9 is a legal requirement, and failure to comply can result in significant penalties.
Understanding the requirements of Form I-9, including the different sections of the form, the acceptable documents for verification, and the relationship with E-Verify, can help employers navigate this complex process. With careful attention to detail and a commitment to compliance, employers can successfully meet their Form I-9 obligations and maintain a lawful workforce.
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