I-9 Reviews

Frequently Asked Questions & Answers

1. What is Employment Eligibility Verification?

The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the U.S. after November 6, 1986. To implement the law, employers are required to complete Form I-9, Employment Eligibility Verification forms, for all employees, including U.S. citizens.

2. Do citizens and nationals of the U.S. need to prove to their employers they are eligible to work?

Yes. While U.S. Citizens and nationals are automatically eligible for employment, they too must present proof of employment eligibility and identity and complete an Employment Eligibility Verification form, Form I-9.

Note: U.S. citizens include persons born in Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands. Nationals of the U.S. include persons born in American Samoa including Swains Island.

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3. For whom must employers complete Form I-9?

Every U.S. employer must have a Form I-9 in its files for each new employee, unless the employee:

  1. Was hired before November 7, 1986, and has been continuously employed by the same employer
  2. Is providing domestic services in a private household that are sporadic, irregular or intermittent
  3. Is providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results 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)

4. Do I need to complete an I-9 Review for everyone who applies for a job with my company?

No, you need to complete I-9 review only for people you actually hire. For purposes of the I-9 rules, a person is ‘hired’ when he or she begins to work for you for wages or other compensation.

5. I understand that I must complete a Form I-9 for anyone I hire to perform labor or services in return for wages or other remuneration. What is ‘remuneration’?

‘Remuneration’ is anything of value given in exchange for labor or services rendered by an employee, including food and lodging.

6. Can I fire an employee who fails to produce the required documents within three business days?

Yes, you may terminate an employee who fails to produce the required documents, or a receipt for a replacement document (in the case of lost, stolen or destroyed documents), within three business days of the date employment. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document, he or she must produce the actual document within 90 days of the date employment.

7. What happens if I properly complete a Form I-9 and the U.S. ICE discovers that my employee is not actually authorized to work?

You cannot be charged with a verification violation; however, you cannot knowingly continue to employ this individual. You will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien unless the government can prove you had actual knowledge of the unauthorized status of the employee.

8. As an employer, what is my responsibility concerning the authenticity of documents presented to me?

You must examine the documents and, if they appear to be reasonably genuine and relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If a document does not appear reasonably genuine and relate to the person presenting it, you must not accept it. You may contact your local U.S. ICE office for assistance.

9. May I accept a photocopy of a document presented by an employee?

No, employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate.

10. What should be done with Forms I-9 after they are completed?

Unlike tax forms, for example, I-9 forms are not filed with the U.S. government. The requirement is for employers 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. This means that Form I-9 needs to be retained for all current employees, as well as 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, but 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.

11. As an employee, what is my responsibility regarding Form I-9?

As a new employee you must complete Section 1 of a Form I-9 no later than close of business on your first day of work. Your signature holds you responsible for the accuracy of the information provided. Your employer is responsible for ensuring that you complete Section 1 in full.

12. What happens when I discover that an employee is unauthorized to work?

It occasionally happens that as an employer you may learn 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, you should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued.

Note: Foreign national employees who question the employer’s determination may be referred to an Immigration field office for assistance.

13. What are I-9 Review requirements for new owners of existing businesses?

In case you are a new owner of a business as a ‘successor in interest’, having acquired an existing business, you 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 you would be responsible for any errors, omissions or deficiencies in the acquired records, you may choose to protect yourself by having a new Form I-9 completed for each acquired non-exempt employee and attached to that employee’s original Form I-9.

14. What are Form I-9 requirements for remote hires?

In case you have hired a new employee who doesn’t physically come to the office to complete the paperwork, you may designate agents to carry out your I-9 responsibilities. Agents may include notaries public, accountant, attorneys, personnel officers, foremen etc. You should choose an agent cautiously, since you will be held responsible for the actions of the agent.

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.