Requirements
The Immigration Reform and Control Act of 1986 (IRCA) required employers to verify that all newly hired employees presented "facially valid" documentation verifying the employee's identity and legal authorization to accept employment in the United States. The I-9 form, or more properly the Employment Eligibility Verification Form, is provided by the federal government for that purpose.
Contents
- Requirements
- Prerequisites for employees
- Documentation for proof of identity andor employment authorization
- List A
- List B
- List C
- Reverification
- Retention
- Anti discrimination provisions
- Types of discrimination
- Penalties
- References
Every employee hired after November 6, 1986 must complete an I-9 form at the time of hire. Employees must complete Section 1 of the form upon commencing employment. The employer must complete Section 2 within three days of the employee's starting date at work. The employer is responsible for ensuring that the forms are completed properly and in a timely manner.
The I-9 is not required for unpaid volunteers or for contractors. However, a company could still find itself liable if it contracts work to a contractor it knows either is or employs unauthorized workers.
On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) published a new I-9 Form. Use of the previous 2013 version of the I-9 form is only acceptable until January 22, 2017. After January 22, 2017, all employers must use the revised I-9 Form.
If an employee cannot read or cannot write English, a translator or preparer may complete the form and sign it on their behalf. The form also requires the employee's own signature.
In October 2004, new legislation made it possible to complete the I-9 electronically.
Prerequisites for employees
In completing form I-9, a prospective employee attests, under penalty of perjury, that she/he is in one of the following categories:
Documentation for proof of identity and/or employment authorization
With the form, a prospective employee must provide documents that prove his/her eligibility to work. A variety of documents is acceptable, some in a specified combination with another, as described below.
The prospective employee must provide
All documentation must be unexpired as of April 3, 2009
List A
Documents that may be used under "List A" of the I-9 form to establish both identity and employment eligibility include:
List B
Documents that may be used under "List B" of the I-9 to establish identity include:
For individuals under the age of 18 only, the following documents may be used to establish identity:
Employees who supply an item from List B (to establish identity) must also supply an item from List C (to establish employment eligibility).
List C
Documents that may be used under "List C" of the I-9 to establish employment eligibility include:
U.S. citizens who have lost their social security card can apply for a duplicate at the Social Security Administration.
Employees who supply an item from List C (to establish employment eligibility) must also supply an item from List B (to establish identity).
Reverification
Employers must update or reverify certain ID documents at or prior to their expiration date. This does not apply to already presented and accepted non-expired US Passports or Permanent Resident Cards when they reach their expiration date, nor to any List B documents, e.g. state driver's licenses and state ID's. The USCIS website, in the Employer section, Employer Bulletins, lists the limited requirements and allowed instances for reverification.
For U.S. citizens, I-9's are valid continuously unless a break of more than a year of employment occurs. International employees on F-1 (student), H-1B (specialty occupation), or J-1 (exchange visitor) visas must have their I-9 reverified each time their visa has expired with a new work authorization permit (renewed visa with work authorization, EAD, Permanent Residence Card, etc.).
Retention
Employers must retain a Form I-9 for all current employees. Employers must also retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later. Employers must show their employees' I-9 form any time the immigration or labor authority requests it.
Anti-discrimination provisions
The Immigration Reform and Control Act which introduced the requirement leading to the promulgation of the I-9 form, also included anti-discrimination provisions. Under the Act, most US citizens, permanent residents, temporary residents or asylee/refugee who are legally allowed to work in the US cannot be discriminated against on the basis of national origin or citizenship status. This provision applies to employers of three or more workers and covers both hiring and termination decisions. In addition, an employer must accept any valid document or combination of documents specified in the I-9 form, as long as the documents appear genuine.
For example, an employer could not refuse to hire a candidate because his I-9 revealed that he was a non-citizen (such as a permanent resident or a refugee) rather than a U.S. citizen. For this reason some immigration lawyers advise companies to avoid requiring an I-9 until a candidate is hired rather than risk a lawsuit. As another example, a company could not insist that an employee provide a passport rather than, say, a driver's license and social security card. Another anti-discrimination provision requires that employers must enforce I-9 compliance in a uniform manner. For example, an employer must not require some employees to complete an I-9 before being hired, but allow others to complete the form after starting employment.
Employers must not assume that the employee is unauthorized to work just because the individual either could not bring the proof of employment authorization or has brought the unaccepted document(s) until the start date of the employment. Instead, employers should encourage that employee to bring the acceptable document(s) which is/are under the List A, B, and/or C. Employers may terminate the employment only if the employee cannot attest the person's work authorization by bringing the proof after the start date.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC") is a section within the Department of Justice's Civil Rights Division that enforces the anti-discrimination provision of the Immigration and Nationality Act ("INA"). The OSC can help workers by calling employers and explaining proper verification practices and, when necessary, by providing victims of discrimination with charge forms. Upon receipt of a charge of discrimination, OSC investigations typically take no longer than 7 months. Victims may obtain various types of relief, including job relief and back pay.
OSC also has an extensive outreach program. It provides staff to speak at outreach events throughout the country, and has free informational brochures, posters and tapes for distribution.
Types of discrimination
The OSC investigates the following types of discriminatory conduct under the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. ยง 1324b:
Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee by employers with four or more employees. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals. U.S. citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. Exceptions: permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order, or government contract is permissible by law.
National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign". All U.S. citizens, lawful permanent residents, and work authorized individuals are protected from national origin discrimination. The Equal Employment Opportunity Commission has jurisdiction over employers with 15 or more employees.
Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. U.S. citizens and all work authorized individuals are protected from document abuse.
Retaliation. Individuals who file charges with OSC, who cooperate with an OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship or immigration status, or national origin, or who assert their rights under the INA's anti-discrimination provision are protected from retaliation.
Penalties
The IRCA includes penalties for I-9 noncompliance. According to the I-9 form, "federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form." An employer who hires an unauthorized worker can be fined between $250 and $5,500 per worker. In addition, such an employer can be barred from federal government contracts for a year. An employee who knowingly accepts fraudulent documentation can also be criminally prosecuted under other immigration laws.
An employer who fails to keep proper records that I-9s are properly filed can be fined $110 per missing item for each form, up to $1100 per form, even if the employee is legally authorized to work in the US. Since 2009, Immigration & Customs Enforcement (ICE) has conducted over 7,500 audits and imposed over $80 million in fines. In 2011 alone, ICE conducted 2,740 audits and assessed over $7 million in fines.
An individual who knowingly commits or participates in document fraud may be fined between $375 and $3,200 per document for the first offense, and between $3,200 and $6,500 per document for subsequent offenses.