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Green Cards (Common)
National
Interest Waivers
Extraordinary Ability
Professors
& Researchers
Executives
& Managers
PERM Labor
Certification
Family (Spouse, etc.)Work Visas (Common)
H-1B Professionals
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TN Canadians & MexicansAnswers for--
Employers
Researchers
J-1 Visa Holders
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Therapists
Doctors |
Frequently Asked Questions about I-9 ComplianceBasic Requirements of I-9 Compliance:
Acceptable Documents for I-9 Form
Expiration of Documents and Reverification
File Retention
Employer Sanctions
Basic Requirements of I-9 ComplianceWhat is required to verify work authorization?The basic requirement to verify work authorization is the Form I-9. This form is available through the U.S. Citizenship and Immigration Services at http://uscis.gov/graphics/formsfee/forms/files/i-9.pdf. The back of the form lists the types of documents that a new hire must provide to verify his or her identity and that he or she is authorized to work in the United States. Who must complete the Form I-9?Employers must fill out and keep a Form I-9 for every person hired on or after November 6, 1986. Why must United States citizens fill out I-9 forms?The I-9 form is designed to determine who is authorized to work in the United States. Its purpose is not to determine who is and who is not a citizen. While all citizens are authorized to work here, it is not always easy to recognize who is and is not a citizen because of the diverse heritage of our country. Employers must do an I-9 form for every employee, not just those who appear to be non-citizens. Do I need to complete a Form I-9 for everyone who applies for a job with my company?No. You need to complete Form I-9 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. When must the Form I-9 be completed?The Form I-9 must be completed within three business days of the date employment begins. If the new hire claims that the necessary documents where lost, stolen or destroyed, the person must provide a receipt for replacement documents within the three days. 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 begins. Can I terminate 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 documents (in the case of lost, stolen or destroyed documents), within three business days of the date employment begins. However, you must apply these practices uniformly to all employees and not just to those who do not appear to be citizens. Acceptable Documents for the I-9 FormWhat are the legally acceptable documents that a new hire can show for I-9 purposes?The employer is required to verify both identity and authorization to work in the United States. The back of the I-9 Form describes which documents establish a new hire's identity and work authorization. You may also review our table of acceptable I-9 documents.
Can I refuse to hire a person who does not have a U.S. birth certificate or a green card but has other papers?The employer must look at the other documents papers to determine whether they prove identity and work authorization. An employer cannot require that the new hire provide specific documents, such as a U.S. birth certificate or a green card. A new hire may show any of the documents listed on the I-9 form. The documents shown in List A on the back of the I-9 form prove both identity and authorization to work. If a new hire provides a document in List A, only one document is needed. If the document provided is not in List A, the employee must provide a document from List B and a document from List C. If I believe a new hire is an alien, can I ask the person to produce a Green Card when filling out the I-9 Form?No, employers can not specify which document or documents are acceptable from an employee. If the person provides a document from List A, or a document from List B and a document from List C, the employer may not request any other document to verify employment eligibility. When filling out the I-9 Form, can I accept a social security card from an alien as proof of work authorization?Yes, so long as the Social Security Card does not state "NOT VALID FOR EMPLOYMENT" or "VALID FOR WORK ONLY WITH INS AUTHORIZATION." Social Security Cards without either of these statements establish employment eligibility and should be accepted as proof of work authorization. If the person shows one of the identity documents, does the employer need anything more?Yes. The employer must also see proof of authorization to work such as a U.S. Social Security card (a Social Security card that says "Not Valid for Employment" is not acceptable), a birth certificate showing birth in the U.S. or a valid Immigration document showing work authorization such as an employment authorization card or an H-1 or other working visa approval notice. If we see the identity and a work authorization card from the Immigration Service, can we also ask for a green card to be sure?No. The employer cannot require more than the minimum needed to comply with the I-9 form. The employer cannot specify which documents it wants to see. What is my responsibility concerning the authenticity of documents presented to me?You must examine the document or documents. If the documents reasonably appear on their face to be genuine and to 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 reasonably appear on its face to be genuine and to relate to the person presenting it, you must not accept it. You may contact your local Immigration Service office for assistance. The addresses and telephone numbers of the Immigration Service office nearest you is available at the Immigration Service district office directory. May I accept a photocopy of a document presented by a new hire?No. Employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate. Expiration of Documents and ReverificationDo I have to reverify the employment eligibility of a worker whose permanent resident card has expired?No. The Immigration Service provided a NOTICE TO EMPLOYERS (Form M-324 - Rev.10-26-89), stating: "On August 1, 1989, INS began issuing a revised Resident Alien Card, Form I-551, to new permanent resident aliens. . . . The I-551 is a List A document . . . because it establishes both identity and employment eligibility. The card will also contain an expiration date, making the card valid for 10-years from the date of issuance; the new hire will then be required to obtain a new card. However, because employment authorization is unlimited for I-551 holders, there will be no need to update the I-9." Can I accept an expired driver's license to establish a new hire's identity for I-9 purposes?Yes. The INS Handbook for Employers (page 14) specifically states that "You may . . . accept an expired document from List B to establish identity." However, a driver's license can only be used to establish a new hire's identity for I-9 purposes. It is one of a number of documents, called List B documents, that only establish identity for I-9 purposes. The new hire must also provide a document from List C to establish work authorization. This rule also means that if a List B document is used to establish a new hire's identity, you do not need to reverify the I-9 Form when that document expires. Can I accept an expired United States passport to establish a new hire's identity and authorization to work?Yes. An expired United States passport establishes both who the holder is (their identity), and that they are a United States citizen and therefore authorized to work in the United States. Page 14 of the INS Handbook for Employers specifically states that "you may accept an expired United States Passport [for I-9 purposes]." If a new hire provided a passport on the I-9 Form, you do not need to reverify the I-9 Form when the passport expires. Can I refuse to hire a person who shows an employment authorization card that will expire in three months, if the job is permanent?No. An employer may not refuse to hire because work authorization will expire in the future. File RetentionMay I copy documents presented for I-9 purposes?The law does not require nor prohibit copying documents presented for I-9 purposes. Page 15 of the INS Handbook for Employers states: "The law does not require you [an employer] to photocopy documents. However, if you wish to make photocopies, you should do so for all employees, and you should retain the photocopy with the I-9. Photocopies must not be used for any other purpose." If you choose to photocopy the documents presented for an I-9 Form, you must photocopy the documents of ALL new hires, not just those you think may be aliens. To do otherwise, may subject the employer to a charge of unfair immigration-related employment practices. How long must an employer retain an employee's I-9 form?Nonagricultural employers must retain the I-9 file for 3 years after the date employment begins or 1 year after the person's employment is terminated, whichever is later. This means that you should retain I-9s for all current employees for as long as they are employed AND continue to maintain them for a year after they are terminated. If an employee leaves before they have been with the employer for 3 years, the employer must maintain the I-9 for longer than 1 year from the date employment is terminated. For example, if an employee leaves after 1 year, the employer must maintain that employee's I-9 for 2 years after they are terminated, because all I-9 forms have to be maintained for a minimum of 3 years. Employer SanctionsWhat penalties may be imposed if I do not complete or keep the I-9 forms as required?The Law provides for penalties from $100 to $1,000 for each incorrect or missing I-9. These penalties may add up quickly. Recently, the Immigration Service accused Disneyland in California of having over a thousand paperwork violations, and issued a notice to fine Disneyland $395,000. In another case, the Immigration Service fined a Georgia packing company over $1 million dollars for various violations, including the smuggling of undocumented aliens into the U.S. Are there other employer requirements besides completing the Form I-9?Yes. There are anti-discrimination rules. An employer could be fined or penalized for failing to hire an authorized worker for discriminatory reasons, for demanding specific documents, for asking to see more than the minimum documents, and for other reasons. The Office of Special Counsel has caused employers to pay a total of over $1 million in back-pay to workers, has required employers to rehire workers, and has levied fines totaling hundreds of thousands of dollars. The amount of the fine will depend on whether the employer made a genuine error, if the workers were authorized to work, if there were repeated violations or warnings, and other factors. This page answers some of the most
frequently asked questions about employer sanctions and I-9 compliance.
These answers do not constitute legal advice. For answers to questions
about a particular situation, please
contact Peng and
Weber for a consultation. |
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