What is an I-9 Form?

What is an I-9 Form? The USA hires people from around the world and when doing so it does not force them to give up their citizenship from their country of origin. Instead the U.S. Citizenship and Immigration Service section of the Department of Homeland Security (DHS) uses the I-9 to verify a worker’s identity and certify that they have been legally employed in the USA. Every employee whether a citizen or not fills out an I-9. Essentially it functions as an employment authorization. Not only does the employee fill out the form so too does the employer. No social security number has been required on the form.

Three sections exist on the I-9 form:

Section

Instructions

1

Completed by employee by the first day of work for pay

2

Completed by employer by the third business day the employee starts working for pay

3

Completed by employer if employee’s work authorization expires

Or if the employee rehires within 3 years of the date the form I-9 became originally completed

 

If in doubt or an I-9 form expires then a new form may be filled out on a rehire. The I-9 form exists online and now has the option of e-Verify. Several definitions exist for the word hired. Companies have a specific definition of what being hired means in their business, then the state the company does business in has a definition of what being hired means and what paperwork must be done to make it legal. In recent years the Department of Homeland Security created a definition that widely defines what being hired means. It states being hired in the USA begins with the actual commencement of employment of an employee for wages or other remuneration.

Employer’s Participation in E-Verify

E-Verify compares information from the employee’s portion of the Form I-9 with some data from the U.S. Department of Homeland Security. Other departments contacted once a person becomes hired includes the Social Security Administration and the IRS. Some state agencies also are contacted with an employee’s information.

The E-Verify confirms employment eligibility in most cases unless it is freelancing and independent contractors. In those cases, each individual company hiring contractors have a system which may or may not involve an I-9 form depending on length of employment and industry. Each individual contractor has instructions to answer to the IRS. E-Verify covers most mainstream company’s needs.

E-Verify helps cut down on fraudulent use of social security numbers and other information needed for employment so companies can have reasonable assurance the person they hire are who they say they are. The problem remains not just illegal immigrants but organized crime elements in this country that have created the need for checking across state lines. Occasionally I-9 audits occur so keep track of where the papers become filed and who is responsible. The responsibility of proving citizenship or legal entry into the USA remains on the employee by presenting a document.

List of Acceptable Documents For I-9 Form

A set of documents exist that easily confirm a person can legally work in the USA. If for whatever reason those documents were lost original official copies are available from government agencies and substitutions exist. Your status as a citizen or person legally able to work in the USA becomes confirmed with the following documents:

            List A                                           List B                                           List C

Documents that Establish Identity and Employment Authorization

Documents that Establish Identity

Documents that Establish Employment Authorization

USA Passport

Driver’s license

Social Security Number without restrictions

Form I-551 Permanent Resident Card or Alien Registration Receipt Card

ID card issued by state

Certificate of Report of Birth Abroad from Department of State

Foreign passport with temporary I-551 stamp

ID card issued by federal, state or local government agencies

Birth certificate issued by state, county, municipal authority, or territory with an official USA seal

Employment Authorization Document Form I-766

School ID card with photograph

USA citizen ID Card Form I 0197

Nonimmigrant alien authorized to work foreign passport, Form I-94 or I-94A with endorsement

Voter’s registration card

Identification Cared for Use of Resident Citizen in the USA Form I-179

Passport from Micronesia, Marshall Islands with Form 1-94 or I-94A

USA military card or draft card

Military dependent’s ID card

USA Coast Guard Merchant Marine

Employment authorization document issued by the Department of Homeland Security

 

Native American tribal document

 

 

All the documents must be valid. Employees choose one document from List A or a combination of one selection from List B and one selection from List C. Documents acceptable for those under 18 being employed list as school record, report care, clinic, doctor, hospital record, day care record or nursery school record. Some other documents exist for other cases on the actual I-9 form.

Three categories of legally acceptable employees exist: citizen, national of USA, a lawful permanent resident, and alien authorized to work in USA till a specific date. Employers have instructions to view the documents to reasonably determine genuineness of the presented documents. Check if the information presented correlates to the person they are hiring. If reasonable then who views the documents verifies employment eligibility and then signs and dates the I-9 form. The laws prescribed does not view the signature by said employee as a verification of the legitimacy of the documents. The signature signifies the documents appear to be genuine and correlate the person they are hiring. Other document choices exist for special cases and contacting the U>S. Homeland Security Department can help with that. Always check the latest I-9 form since changes do happen as in other documents become added in while others expire.

Receipt Rule

In some special cases receipts can become substituted for documents. This receipt rule states if the original documents became lost, damaged, or stolen, a receipt of application to replace said document can be accepted. The original replacement document within 90 days of being hired can then be shown later. Form I-94 with a refugee admission stamp defines as a receipt and is acceptable for 90 days. For Canadians, the unexpired foreign passport ruling with the I-94 has been made more limiting.

These employees have been restricted to work only for the employer that petitioned on their behalf. They will need to present a Canadian driver’s license to work and it has been classified under list B. Refugee stamps such as I-94 often form has a reference to Section 207 instead of the word “refugee” since it lists under the mandates of Immigration and Nationality Act. Two exceptions list as any receipt lasting less than 3 days has been deemed unacceptable. Any extension of a EAD card employment authorization expiration date has been deemed unacceptable.

When Employment Eligibility Forms are Completed

Potential employees complete section 1 of the I-9 form by the date of the proposed hire. The section 1 must become signed and dated or the form remains invalid. The employee required documents must be presented or a receipt for replacement documents presented within three business days of being hired. After that the employer verifies the employment eligibility, identifies the documents as genuine, record the information on the I-9 form, and file within three business days of being hired. If an employer fails to do so as in complete and maintain the I-9 forms then the Department of Labor after an audit my give fines or other penalties including legal ramifications to the employer. If a new worker fails to bring in replacement documents s agree or meet the criteria in the 3-day period following a hire then they must stop working until I-9 becomes completed.

Employers fill out Section 2 of the I-9 in three business days of being hired. Information recorded consists of:

  • Start date of employment
  • Title of document
  • Issuing authority of document
  • Document number if it has one
  • Expiration dates if any

Special Circumstances

If hiring for telecommuting a designated agent can carry out the employer portion of the I-9 form duties. The I-9 form can become downloaded from the Homeland Security website and sent by email, or placed in the employer’s content management system. Other options include Google Drive and Dropbox shared drive files. Someone rehired within 3 years of the original date does not have to have a new I-9 form. If the employee remains eligible to work in the same circumstances as the original I-9 form the form remains fine. If circumstances have changed update the form.

Background on the Legislation

Originally the Federal government ran various programs like the Bracero Program that brought immigrants from other countries in for a defined time. Industries hired the immigrants and after the program was dismantled industries continued the hiring. Other legislation offered a means to continue hiring outside the USA legally. By November 6, 1986 Immigration Reform and Control Act gave American employers legal responsibility for employment eligibility verification using the I-9 form. The I-9 form will not be used for volunteers. Foreign nationals on employment visas, immigrants, and a host of temporary workers from other countries fill out the I-9 form as well as citizens. If a person cannot read or write in English a translator can fill out the form so the person can work. The form indicates the legal status of the person no matter what language they speak.

New I-9 Form Required: What You Need to Know

 In October 2004, the process was put online. I-9 continues to become updated and as of January 22, 2017 the form has a new version. The previous version can still be used by employers. The forms have a date. I-9 forms with the date 11/14/2016N and forms with the 3/08/2013 have been deemed valid forms.  If re-verifying an employee then use the latest form. If an audit occurs and you find forms not meeting specifications then use the new I-9 form to update. If the I-9 form has an older version with documents not acceptable now do not disregard the form but attach the outdated complete form to a blank new form or sign the current blank version and make a note why. Do not ask all present employees to fill new I-9 forms since this can be considered discrimination on the part of the employer. The process for the new form remains the same.

I-9 Form Reverification Process

American citizens I-9 forms remain valid indefinitely. If a gap in employment happens for more than one year then fill out a new form. Students., exchange visitors and foreign nationals must fill out a new I-9 form for each extension. A new form must become filled out after an expired visa so to issue a new employment permit. An employer will retain I-9 forms for three years after a worker start date and one year after a worker leaves. Employers may want to establish a system in their companies that notifies select personnel when their employee’s authorization will expire. Provide employees a 90-day notice to gather documents for presentation.

Exceptions to I-9 Form

People legally allowed in the USA cannot be terminated because of origin of citizenship alone or even denied working. Employers must accept genuine documents. The I-9 form is not needed in these circumstances.

  • Hired before November 6, 1986 and in continual employment
  • If your job is casual domestic work as in babysitting, cleaning, or nannying intermittently in a private home
  • Independent contractor
  • You do not physically work in the USA

Antidiscrimination Clauses

If an employer has three or more workers than the Immigration Reform and Control Act applies. Employers are not to use I-9 form as a prescreening device. Documents should not be viewed until an employer officially hires someone.

Penalties for Employers Who Hire Unauthorized Workers

Hiring unauthorized workers results in a fine from $250 to $5,500 per worker depending on the circumstances. Fraudulent documents that obviously are not genuine has a penalty of $373 to $3,200 for the first offense. It doubles per documents after that. Employers discriminating based on national origin, citizenship, document fraud or out of retaliation are fined and have other legal repercussions.

If you need help with a I-9 form, you can post your legal need on UpCounsel’s marketplace. UpCounsel hires only the top 5 percent of lawyers into its site. Most have 14 years of legal service and have worked with small business to corporates. Their level of expertise ensures you the best and latest legal advice.