You have some great new hires coming on board. But, along with training and acclimating them to your organization, you have another critical task to accomplish within their first few days on the job: complete Form I-9.
The Form I-9 requirement started with enactment of The Immigration Reform and Control Act on November 6, 1986. It requires employers to verify both the identify and employment eligibility of all individuals they recruit, refer for a fee, or hire in the United States, regardless of whether that individual is a U.S. citizen or not.
On the form, the employee must attest to his or her identity and employment authorization, as well as present the employer with documents that support those claims.
What does the I-9 form require?
Section 1 of Form I-9 must be completed and signed by the employee no later than the close of business on his or her first day of work. It covers the basics, like name, address, email address, as well as identifying as a U.S. citizen, noncitizen natural, lawful permanent resident or as an alien authorized to work in the U.S. through a specific date.
Employees also have to provide specific documentation to support their claims.
As an employer, you have to examine these documents and complete Section 2 of Form I-9 no later than the third business day after the new hire starts his or her position.
Acceptable I-9 documents
Employees are required to present one physical document from List A, or a combination of one physical document from List B and one document from List C to comply.
List A includes these items that establish both identify and employment authorization:
- U.S. Passport or Passport card
- Permanent Resident Card or Alien Registration Receipt Card
- Foreign passport with a temporary I-551 stamp or temporary I-551
- Employment Authorization Document with a photograph (Form I-766)
For a non-immigrant alien authorized to work for a specific employer due to status, the requirements are a foreign passport and a Form I-94A that has:
- The same name as the passport
- An endorsement of the alien’s non immigration status, as long as this hasn’t expired, and employment is not in conflict with any identified restrictions.
New hires can also present a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating non-immigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.
List B Includes these documents that establish identity:
For adults:
- Driver’s license
- ID card issued by federal, state or local government with photo or vital statistics
- School ID card with a photograph
- Voter’s registration card
- U.S. Military card, draft record or U.S. Coast Merchant Mariner Card
- Military dependent’s card
- Native American tribal document
- Driver’s licenses issued by a Canadian government authority
For individuals under age 18 without any of the documents above:
- School record or report card
- Clinic, doctor or hospital record
- Day care or nursery school record
List C includes these documents that establish employment authorization:
- A Social Security card that is free of employment restrictions
- Certification of birth issued by Department of State
- Original or certified birth certificate issued by state, county, municipal authority or U.S. territory with the official seal
- Native American tribal document
- U.S. Citizen ID card (Form I-197)
- ID card for Use of Resident Citizen in the United States (Form I-179)
- Employment authorization document issued by the Department of Homeland Security
Unacceptable documents
Employers are required to thoroughly review the documents presented, ensure they are genuine, and make sure they have not expired.
It’s important to note that the only acceptable documents are those detailed in the previous section. The requirement is either one valid document from List A or a combination of one document each from List B and List C.
Although other document types may include the employee’s name, like credit cards, utility bills, and mail, none of these can be used for as I-9 documentation.
How to store I-9 documents
In addition to completing the form for each employee, employers are responsible for storing these forms for each employee for three years after the date of hire or one year after the employee’s date of termination, whichever comes later.
The forms can be stored on paper, microfilm, microfiche or stored electronically, but, they have to be accessible enough that they’re readily available for inspection if requested by authorized U.S. government officials.
Any electronic system to retain 1-9s have to have reasonable controls to prevent alterations to the documents and ensure the system’s integrity, accuracy and reliability. Because the I-9 contains private information about each employee, experts also recommend storing these separately from other personnel records.
Finally, consider conducting periodic HR audits ensure that your organization is in compliance with current regulatory requirements, and documents are safely stored.
Ways to accept I-9 documents online
But, how does a company go through the I-9 process, and meet the three-day timeframe, when the employee is working remotely in a different state, or across the country?
In these cases, employers may designate an authorized representative—either a personnel officer, a foreman, an attorney or a notary public—to vet and verify the employee documentation on their behalf. However, although the authorized representative is the one who completes form I-9, the employer is still liable for any violations in connection with the verification process.
Many employers also run new employees’ form I-9 through E-Verify, an online system that compares form information with government records to look for discrepancies. While this isn’t a requirement, it provides an added layer of liability protection.
While electronic signatures are allowed, companies that go the digital round have to ensure the service they use has a way to:
- Enable individuals to confirm that they read acknowledge the attestation before signing Section 1 and Section 2 (like a checkbox)
- Attach the electronic signature to an electronically completed Form I-9
- Affix the electronic signature at the time of the transaction
- Create and preserve a record verifying the identity of the employee producing the signature
- Provide a printed confirmation of the transaction
During the COVID-19 pandemic, the U.S. Immigration and Customs Enforcement (ICE) made it easier to complete the remote I-9 process by allowing employees and employers to email or fax documents, as well as meet together virtually to ensure those documents are acceptable. Although this relaxed policy was set to expire on December 27, 2021, at the time of this writing, it has been extended through October 31, 2022.
The best advice? Continue to monitor DHS’ and ICE’s Workforce Enforcement announcements to stay on top of when the extensions end and pre-pandemic guidelines resume.
