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|Form I9 Compliance, Follow Now or Pay Later
If you are a U.S. employer hiring new employees,
it is essential you complete Form
I-9, Employment Eligibility Verification Form,
for each new employee. Employers who don’t adhere
to the I-9 requirements can anticipate civil and
or criminal penalties.
On November 7, 2007, the U.S. Citizenship and
Immigration Services (USCIS) announced that a
revised Form I-9 is now available. Subsequently,
the USCIS announced on November 26, 2007, that
all employers must transition to the revised Form
I-9 no later than December 26, 2007 and employers
who fail to use the revised form will be penalized.
The Revised Form I-9
This revision has removed five documents for proof
of both identity and employment eligibility which
- Certificate of U.S. Citizenship (Form N-560
- Certificate of Naturalization (Form N-550
- Alien Registration Receipt Card (Form I-151);
- Unexpired Reentry Permit (Form I-327);
- Unexpired Refugee Travel Document (Form I-571).
These five documents were removed because they
lack sufficient features to help deter counterfeiting,
tampering, and fraud. Additionally, the most recent
version of the Employment
Authorization Document (Form I-766) was added
to List A of the List of Acceptable Documents
on the revised form. The revised list now includes:
- U.S. passport (unexpired or expired);
- Permanent Resident Card (Form I-551);
- Unexpired foreign passport with a temporary
- Unexpired Employment Authorization Document
that contains a photograph (Form I-766, I-688,
I-688A, or I-688B);
- Unexpired foreign passport with an unexpired
Arrival-Departure Record (Form
I-94) for nonimmigrant aliens authorized
to work for a specific employer.
This revision seeks to achieve full compliance
with the document reduction requirements of the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA). The IIRIRA mandated the
reduction of the number of documents employers
may accept from newly hired employees to confirm
identity and work eligibility. So what is Form
I-9 all about and what is its importance?
What is Form I-9?
The Immigration Reform and Control Act of 1986
made U.S. employers responsible to verify the
employment eligibility and identity of employees
hired in the U.S. after November 6, 1986 by completing
Form I-9 for all employees, including U.S. citizens.
Note: The Form I-9 is available
in English and Spanish. However, only employers
in Puerto Rico may have employees complete the
Spanish version for their records. Employers in
the 50 states and other U.S. territories may use
the Spanish version as a translation guide for
Spanish-speaking employees, but must complete
the English version.
For whom must Employers Complete Form I-9?
U.S. employers must have a fully completed Form
I-9 for each new employee, unless:
- The employee was hired before November 7,
1986, and has been continuously employed by
the same employer
- The employee is providing domestic services
in a private household that are sporadic, irregular,
- The employee is providing services as an
independent contractor (i.e. carrying on an
independent business contract by their own means
and methods and for whom the employer does not
set work hours or provide necessary tools to
do the job, or whom the employer does not have
authority to hire and fire); and
- The employee is providing services under
a contract, subcontract or exchange entered
into after November 6, 1986. (In such cases,
the contractor is the employer for I-9 purposes;
for example, a temporary employment agency.)
What to do after Form I-9 is completed?
I-9 forms are not filed with the U.S. government.
Employers need to maintain I-9 records in their
own files for three years after the date of hire
or one year after the date the employee's employment
is terminated, whichever is later. I-9s need to
be retained for all current employees, and terminated
employees whose records remain within the retention
period. Form I-9 records may be stored at the worksite
to which they relate or at a company headquarters
(or other) location. The storage choice must make
it possible for the documents to be transmitted
to the worksite within three days of an official
request for production of the documents for inspection.
Note: U.S. immigration
law does not prescribe or proscribe storage of a
private employer’s I-9 records in employee personnel
files. As a practical matter, however, particularly
if a large number of employees are involved, it
may be difficult to extract records from individual
personnel files in time to meet a 3-day deadline
for production of I-9 records for official inspection.
Section 2 of Form I-9 must be completed within three
days of hire. The employer must review and record
the documentation presented by the employee. Proper
documentation establishes that the employee is authorized
to work in the U.S. and that the employee who presents
the employment authorization document is the person
to whom it was issued. The employer may accept any
List A document, establishing both identity and
work eligibility, or a combination of List B (establishing
identity) and List C document (establishing work
eligibility) that the employee chooses to present.
The employer must accept the documents if they appear
to be genuine and relate to the employee who presents
them. Requesting more or different documentation
than the minimum necessary to meet this requirement
may amount to unfair immigration-related employment
practice. If the documentation presented by an employee
does not appear to be genuine or relate to the employee
who presents them, employers must refuse acceptance
and ask for other documentation from the list of
acceptable documents that does meet the requirements.
An employer should not continue to employ an employee
who cannot present documentation that meets the
eligibility and identity requirements.
New employees must complete Section 1 of the I-9
on their first day of work. The employee’s signature
holds him/her responsible for the accuracy of the
information provided. The employer needs to ensure
that the employee completes Section 1 in full. No
documentation is required from the employee to substantiate
Section 1 information.
Testing the Genuineness of the documents
USCIS does not expect employers to be document experts.
However, when reviewing the genuineness of the documents
presented by employees, employers are held to a
reasonableness standard. It may happen that an employer
may accept a document that is not genuine – or is
genuine but does not belong to the person who presented
it. Such employer will not be held responsible if
the document reasonably appeared to be genuine or
to relate to the person presenting it. An employer
who receives a document that does not appear to
be genuine may request assistance from the nearest
Immigration field office or contact the Office of
What to do with unauthorized employees?
It occasionally happens that an employer learns
that an employee whose documentation appeared to
be in order for Form I-9 purposes is not actually
authorized to work. In such a case, the employer
should question the employee and provide another
opportunity for review of proper Form I-9 documentation.
If the employee is unable to provide satisfactory
documentation, employment should be discontinued.
What to do with false documentation?
False documentation includes documents that are
counterfeit or those that belong to someone other
than the employee who presented them. It occasionally
happens that an employee who initially presented
false documentation to gain employment subsequently
obtains proper work authorization and presents documentation
of this work authorization. In such a case, the
law does not require the employer to terminate the
employee’s services. However, an employer’s personnel
policies regarding provision of false information
to the employer may apply. The employer should correct
the relevant information on the Form I-9
Photocopies of Documents
There are two separate and unrelated photocopy issues
in the employment eligibility verification process:
- Whether an employer may accept photocopies
of identity or employment eligibility documents
to fulfill I-9 requirements. The answer is that
only original documents (not necessarily the
first document of its kind ever issued to the
employee, but an actual document issued by the
issuing authority) are satisfactory, with the
single exception of a certified photocopy of
a birth certificate.
- Whether the employer may or must attach photocopies
of documentation submitted to satisfy Form I-9
requirements to the employee’s Form I-9. The
answer is that this is permissible, but not
required. Where this practice is undertaken
by an employer, it must be consistently applied
to every employee, without regard to citizenship
Green Card Issues
The terms Resident Alien Card, Permanent Resident
Card, Alien Registration Receipt Card, and Form
I-551 all refer to documentation issued to an
alien who has been granted permanent residence
in the U.S. Once granted, this status is permanent.
However, the document that an alien carries as
proof of this status may expire. Starting with
the ‘pink’ version of the Resident Alien Card
(the ‘white’ version does not bear an expiration
date), and including the new technology Permanent
Resident Cards, these documents are valid for
either two years (conditional residents) or ten
years (permanent residents). When these cards
expire, the alien cardholders must obtain new
cards. An expired card cannot be used to satisfy
Form I-9 requirements for new employment. However,
expiration dates do not affect current employment
since employers are neither required nor permitted
to re-verify the employment authorization of aliens
who have presented one of these cards to satisfy
I-9 requirements (this is true for conditional
residents as well as permanent residents).
Social Security Card Issues
The Social Security Administration (SSA) currently
issues SSA numbers and cards to aliens only if
they can present documentation of current employment
authorization in the U.S. Lawful permanent residents,
refugees and asylees are issued unrestricted SSA
cards that are
What versions of Form I-9 are valid?
As of November 7, 2007, the Form I-9 with a revision
date of June 5, 2007 is the only version that
is valid and can be used. The revision date is
printed on the lower right corner of the form
and states ‘(Rev. 06/05/07)N’.
Official Inspection of I-9 Records
Upon request, all I-9 Forms subject to the retention
requirement must be made available in their original
form or on microfilm or microfiche to an authorized
official of the Bureau of Immigration and Customs
Enforcement, Department of Labor, and/or the Justice
Department’s Office of Special Counsel for Unfair
Immigration-Related Employment Practices. The
official will give employers at least three days
advance notice before the inspection. Original
documents (as opposed to photocopies) may be requested.
Form I-9 Requirements of New Owners of Existing
If a new owner of a business is a successor in
interest, having acquired an existing business,
the new employer may keep the acquired employer’s
I-9 records rather than complete new Forms I-9
on employees who were also employees of the acquired
employer. However, since the new employer would
be responsible for any errors, omissions or deficiencies
in the acquired records, he may choose to protect
himself by having a new Form I-9 completed for
each acquired non-exempt employee and attach it
to that employee’s original Form I-9.
It is not unusual for a U.S. employer to hire
an employee who doesn’t physically come to the
employer’s offices to complete paperwork. In such
cases, employers may designate an agent to carry
out their I-9 responsibilities. An agent may include
notary public, accountant, attorney, personnel
officer, foremen, etc.
Note: Employers should not
carry out I-9 responsibilities by means of documents
faxed by a new employee or through identifying
numbers appearing on acceptable documents. The
employer must review original documents. Likewise,
Forms I-9 should not be mailed to a new employee
to complete Section 2 himself or herself.
Some business entities contract with professional
employer organizations (PEOs) to handle the personnel
and benefits aspects of the business. This may
include completion and retention of Forms I-9.
Where the business entity and the PEO are ‘co
employers’, one Form I-9 need be completed between
the co-employers for each employee who was simultaneously
hired by the co-employers.
The USCIS has finally revised Form I-9 to bring
it into compliance with the 1997 regulation. This
is a step towards achieving the document reduction
goal set out in IIRIRA. The most significant change
to the revised Form I-9 is the elimination of
five documents from List A of the List of Acceptable
VisaPro's experienced immigration attorneys assist
companies with the Form I-9 compliance requirements.
VisaPro services in this area include:
- Effective and comprehensive Form I-9 employment
- Periodic internal audits of your employee
- Audits of your I-9 compliance procedures
to identify problems and make corrections
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