I-9 Verification: Everything You Need to Know
Employers are required to verify this employment eligibility for every employee hired.6 min read
I-9 verification is a process by which immigrants are deemed eligible to work in the U.S. A prospective employee for any business must provide proof of their identity and eligibility for employment documents within three days of beginning to work. Employers are required to verify this employment eligibility for every employee hired.
If they do not have a Form I-9, they must have a receipt for the application of the I-9 within those same three days. After that, they have 90 days to produce the validated forms. First required by the Immigration Reform and Control Act, or IRCA, of 1986, the I-9 Form verifies the eligibility of an employee to work legally in the U.S.
Following are lists of documents that qualify a person to work in the U.S.:
- A U.S. Passport – this can be expired or up-to-date
- A Permanent Resident Card, which is an Alien Registration Receipt Card, or
- An unexpired foreign passport with a temporary I-551 stamp
- An unexpired Form I-766, I-688, I-688A, or I-688B) – an Employment Authorization Document, which includes a picture, or
- A current foreign passport, accompanied by a current Arrival-Departure Record, or Form I94. It must have the same name on it as the passport does, and contain an endorsement of the foreigner’s non-immigrant status, authorizing that person to work for their prospective employer
Documents that Establish Identity
- A driver’s license or ID card issued by a state or U.S. territory, complete with a picture, description, and address of the intended employee
- A federal, state or local government identification card complete with a picture, description, and address of the intended employee
- A school identification card with a photograph
- A voter’s registration card
- A U.S. military card or draft record
- A military dependent’s ID card
- A U.S. Coast Guard Merchant Mariner Card
- A Native American tribal document, or
- A driver’s license issued by a Canadian government authority
Documents that Establish Employment Eligibility
- A card from the Social Security Administration
- A Certification of Birth Abroad, issued by the Department of State, using Form FS-545 or Form DS-1350
- An original or certified copy of a U.S. birth certificate bearing an official seal
- A Native American tribal document
- U.S. Citizen ID Card, issued after approval of Form I-197
- ID Card for use of Resident Citizen in the U.S., or Form I-179, or
- An unexpired employment authorization document issued by the Department of Homeland Security.
Employment Eligibility Verification
The U.S. Citizenship and Immigration Services, or U.S.C.I.S., recently published a revised version of the Form M-274 handbook, also known as Form I-9, Employment Eligibility Verification, which became effective January 22, 2017. The new version of the Form I-9 resembles the prior form, but the revised handbook goes over in detail the instructions related to properly filling out the new I-9. Filing a Form I-9 completely and accurately is crucial in having a request for employment eligibility granted.
The revised Form M-274 is a hefty handbook, running roughly 69 pages cover to cover. The M-274 is not only the official document used to help with compliance regarding the new Form I-9, it is also often used by the Immigration and Customs Enforcement, or ICE, auditors who review completed I-9s for compliance.
Changes to the Employment Eligibility Handbook
The most significant change to the M-274 is a change in the process for documenting automatic extensions of Employment Authorization Documents, or EADs, to help foreign national employees who are employed in the United States.
Automatic EAD extensions are a new concept, which drew on a Department of Homeland Security rule. The rule offers extra benefits to highly skilled non-immigrant workers in the United States.
Under the new rule, EADs can be automatically extended for as much as 180 days. This is true only for those individuals who file a timely renewal of EADs that are in the same category as their previous EADs.
The new handbook enumerates the different categories into which currently eligible foreign nationals fall in order to qualify for an automatic extension. It also sets forth the process that is used to review the necessary documents and including that information on the I-9.
Some employers who are familiar with Temporary Protected Status, or TPS, will already be familiar with the procedure. It basically involves updating Section 1 and Section 2 to update the automatic extension start and expiration dates.
U.S.C.I.S. VS. I.C.E.
In particular, the M-274 states that “Employers must retain a Form I-9 for each person hired. This requirement applies from the date of hire, even if the employment ends shortly after hired, the hired employee never completes work for pay or never finishes the Form I-9.”
The U.S.C.I.S. seem to be saying that employers need to keep their employees’ I-9 forms, whether or not they start to work or ever receive a paycheck.
However, the United States Immigration and Customs Enforcement agency, also known as the I.C.E., states that an employer is not required to keep a Form I-9 on file for an individual who doesn’t ever begin to work for pay, and therefore wouldn’t be forced to produce that I-9 if there were to be an inspection.
All newly-hired regular and temporary employees working for a university in the United States must complete the I-9 employment verification form if they are.
All schools or university are explicitly prohibited from employing those who have not successfully completed Form I-9 within the prescribed time limits.
Schools and universities also are prohibited from hiring independent contractors, staffing agencies, or recruitment firms that knowingly use undocumented workers.
Employers are familiar with the term ”I-9 Central,” which is the nickname the U.S.C.I.S. uses to describe the online library of resources and tips available to help properly complete the new Form I-9.
When a foreigner is a refugee, there is additional paperwork, Form I-94, the Arrival-Departure Record Card, which states that an unexpired refugee admission stamp, or an electronic Form I-94 printout, with an admission class of “RE,” is acceptable documentation to establish identity and employment authorization, for 90 days.
The new M-274 handbook now includes an entire section about the procedure to correct mistakes made on the I-9, no matter in which section they take place. It is also necessary to note that there are quite a few factors to keep an eye on conducting a self-audit.
Government receipts for a replacement document, for instance, a passport or Social Security card that was damaged, lost, or destroyed, must be produced within three days after being employed. An employee then has 90 days to show the additional document. The employee can keep working throughout those 90 days.
Application receipts for work authorization be used as evidence of work authorization, with the subsequent exceptions:
- Non-immigrants who are sanctioned to work with a specific employer can continue working for their employer for up to 240 days after the expiration of their employment eligibility authorization when presenting a receipt showing that an extension application was filed.
- A transitory I-551 stamp on a Form I-94 is used as a receipt for an alien registration card application. An employee can do the job until the expiration date on the stamp or for up to 12 months after the issuance date if there isn’t an expiration date.
- A refugee admission stamp on a Form I-94 is used as a receipt for an employment authorization document, employment authorization card, or a Social Security card. They might work up to 90 days while an application for one of the authorization forms is granted and processed.
Employees Subject to Re-Verification
Employees whose employment authorization lists an expiration date on their I-9 Form must be re-verified before the expiration date arrives
The re-verification procedure is outlined in the new Form 274 handbook, with regard to document review. The person who is responsible for Form I-9 employment verification also is responsible for the re-verification process.
New Employee Orientation
At a new employee orientation, new hires will be asked if they have completed the I-9 Form. If not, the facilitators of the orientation will provide the employee with Form I-9, along with instructions on how to complete the I-9 verification process.
If an I-9 Form was not completed nor submitted by the expiration of the current work authorization, the employee must stop working and be removed from payroll until an I-9 form is completed and granted. The I-9 Form cannot be backdated to the date the employee originally began working.
If you need help understanding Form I-9 eligibility requirements or with actually completing the Form I-9, you can post a job on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and have an average of 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.