What You Need to Know: I-9 Forms with a Law Update

Updates

Temporary flexibility of Form I-9 requirements

Due to the coronavirus pandemic, the DHS has temporarily waived the physical presence requirement to review the employee’s identity and employment authorization documents in order to complete Form I-9. The relaxed DHS policy only applies to employers and workplaces that are working entirely remotely due to the COVID-19 pandemic. Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within 3 business days for “in-person” verification of their identity and employment eligibility documentation. Employers will enter “COVID-19” as the reason for the physical inspection delay in the field titled “Additional Information” in Section 2. Unless the DHS issues an extension, the remote verification option is set to expire on November 19, 2020.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within 3 business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list, and enter “COVID-19” as the specific reason. Employers may get more information on E-Verify and other temporary policies related to COVID-19 here.

This flexibility has been extended several times, most recently through April 30, 2022. While DHS could still announce another extension, given the end of the expired document flexibility described above, we anticipate that this in-person inspection flexibility may also come to an official end.

List B Documents

The DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification. Beginning on May 1, 2020, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

What you need to know about I-9 Forms

To begin, the Immigration Reform and Control Act of 1986 (IRCA) bars employers from hiring individuals who are NOT legally entitled to work in the United States. Employers must verify that individuals are eligible to work by obtaining an Employment Eligibility Verification Form, known as Form I-9, and inspecting the required supporting documents at the time of hiring. I-9 forms must be retained for 3 years after the worker is hired or for 1 year after termination, whichever is longer.

IRCA also prohibits employers from discriminating in hiring, firing, recruiting, or referring based on national origin or citizenship status. It is also illegal to retaliate against an employee who has filed a discrimination charge. This provision applies to employers with four or more employees.

The process of completing an I-9 Form requires review of certain supporting documents that establish identity and employment eligibility. For all persons hired after November 6, 1986, employers must verify these documents and complete Form I-9 at the time of hire. Employers may not specify which documents the new hire must provide. Rather, employees may select their preferred documents from a List of Acceptable Documents detailed within Form I-9.

List of acceptable documents

Form I-9

The current version of Form I-9 and all related documents can be accessed here.

Employment Verification Documents (List A, List B, and List C)

Any one item provided from List A of Form I-9 will verify both an applicant’s identity and employment eligibility.

If the applicant doesn’t provide an item from list A, the applicant may provide any one item from List B and any one item from List C to meet the requirements.

List A acceptable documents.

An unexpired U.S. passport or U.S. Passport Card
A Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
An unexpired foreign passport that contains a temporary I-551 stamp or a temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
An unexpired Employment Authorization Document that contains a photograph (Form I-766)
For nonimmigrants authorized to work for a specific employer, an unexpired foreign passport and an Arrival-Departure Record (Form I-94 or Form I-94A) bearing the same name as the passport and an unexpired endorsement of the individual’s nonimmigrant status
A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

List B acceptable documents.

An unexpired driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
An unexpired ID card issued by federal, state, or local governmental agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
An unexpired school ID card with a photograph
An unexpired voter’s registration card
A U.S. military card or draft record
An unexpired military dependent’s ID card
An unexpired U.S. Coast Guard Merchant Mariner card
An unexpired Native American tribal document
An unexpired driver’s license issued by a Canadian governmental authority

Please note:

Minors who are unable to present a document from List B may present a school record or report card; a clinic, doctor, or hospital record; or a daycare or nursery school record.
Under the Real ID Act of 2005 (Real ID), states were required to comply with new federal standards for state driver’s licenses and ID cards by the end of 2017. However, as long as these documents still meet the other requirements noted on the Form I-9 List of Acceptable Documents, these forms of identification will still be valid for employee verification purposes. Additional details on states’ Real ID compliance are available here.

List C acceptable documents.

A U.S. Social Security card issued by the Social Security Administration (SSA) (other than a card stating it is not valid for employment)
A certification of birth abroad issued by the Department of State (Forms FS-240, FS-545, or DS-1350)
An original or certified copy of a birth certificate issued by a state, county, municipal authority, or territory of the United States bearing an official seal
A Native American tribal document
A U.S. Citizen ID Card (Form I-197)
An ID Card for use of Resident Citizen in the United States (Form I-179)
An unexpired employment authorization document issued by the DHS (other than those listed under List A)

Form I-9 do’s and don’ts

Employers should follow these steps to make certain they are in compliance with USCIS regulations:

Do not request more or different documents than those required to verify employment eligibility and identity.
Do not knowingly use, attempt to use, possess, obtain, accept, or receive any forged, counterfeit, altered, or falsely made documents.
Do not backdate or otherwise falsely make Form I-9 appear as if it is or has been in compliance with IRCA.
Have new employees complete Section 1 of Form I-9 by filling in the correct information and signing and dating the form.
Ensure that employees fully and properly complete Section 1 of Form I-9.
Examine the original document(s) presented by the employee and then fully complete Section 2 of Form I-9 (note that a certified copy of a birth certificate is an original document for this purpose).
Keep Form I-9 for the duration of employment for all current employees. For discharged employees, Form I-9 should be retained for 3 years after the date employment began or 1 year after the person’s employment is terminated, whichever is later.
Verify that employees present original documents to establish their identity and employment eligibility within 3 business days of the date employment begins if employment will last more than 3 days. If employees are unable to produce the required documents within 3 business days, they must produce a receipt showing that they have applied for the document and present the original document within 90 days of hire. However, employees must present the documents at the time of hire if they are hired for fewer than 3 days.
Verify that employees indicate whether they are already eligible to be employed in the United States and capable of presenting acceptable documents within 3 business days of employment by checking the appropriate box in Section 1 of Form I-9.

The Receipt Rule

Under the receipt rule, an individual may present a “receipt” in place of a listed document to complete section 2 of Form I-9. The receipt is valid for a temporary period.

There are three different documents that qualify as receipts under the rule:

A receipt for the application for a replacement document when the document has been lost, stolen, or damaged. This receipt is valid for 90 days, after which the individual must present the replacement document to complete the I-9 form. This rule does not apply to individuals who present receipts for new documents following the expiration of their previously held document.
A Form I-94 containing a temporary I-551 stamp and a photograph of the individual, which is considered a receipt for Form I-551. The individual must present the Form I-551 by the expiration date of the temporary I-551 stamp, or within 1 year from the date of issuance of Form I-94 if the I-551 stamp does not contain an expiration date.
A Form I-94 containing an unexpired refugee admission stamp. This is considered a receipt for either an Employment Authorization Document (i.e., Form I-766 or I-688B) or a combination of a Social Security card and List B document.

The employee must present acceptable documentation to complete the I-9 form within 90 days after the date of hire, or in the case of reverification, the date employment authorization expires. DHS regulations provide that if it doesn’t decide an application for employment authorization within 90 days, it will grant an employment authorization document valid for a period not to exceed 240 days.

Copies of verification documents

Employers may only accept original documents and those that appear to be genuine and relate to the person presenting them. While regulations do not require employers to copy and retain the documents presented by individuals, it is acceptable to do so.

However, if such copies will be retained, remember to follow the same procedure for all new hires.

“Grandfathered” employees. Employees hired on or before November 6, 1986, are “grandfathered,” which means they don’t have to complete the I-9 form and employers are not required to verify their status. The grandfathered status will continue for such employees until they quit, are terminated, are deported from the United States, or otherwise leave the country.

Social security numbers

Applicants are not required to have a Social Security number (SSN) at the time they apply for a job.

Once hired, however, employees must fill out the appropriate federal and state tax withholding forms and a Social Security number is required at that time. New hires in need of an SSN should be referred to an SSA office to complete an application and provide the necessary evidence for a Social Security number.

Reverification

Many work authorization documents must be renewed on or before their expiration dates, and the I-9 form must be updated.

During this reverification process employers must accept any valid documents an employee chooses to present, whether or not they are the same documents provided initially. Identity documents need not be inspected when an I-9 form is updated.

Rehired employees

Employers aren’t required to reverify the status of individuals they previously employed if the worker is rehired within 3 years of the initial execution of the I-9 form.

If the employer doesn’t complete a new I-9 form for the rehired employee, it must complete Section 3 of the employee’s original completed I-9 form, which is reserved for reverification and rehires.

Civil and criminal penalties

Employers may be assessed civil penalties for hiring or continuing to employ unauthorized immigrants, failing to comply with Form I-9 requirements, or not requiring identification.

Are you in compliance?

No-Match letters

A “no-match” letter is a written notice issued by the SSA to an employer advising that the name or SSN provided does not match those in SSA’s records. A no-match letter makes no statement about the referenced employee’s immigration status and, instead, simply reports an apparent error in the employer’s or SSA’s records and seeks assistance of the employer (and, if necessary, employee) in correcting the issue.

There are many possible reasons for a no-match letter, many of which have nothing to do with immigration status or work authorization. Because of this, an employer shouldn’t assume that an employee referenced in a no-match letter isn’t authorized to work. If a no-match letter is received, the employer should confirm that the name and SSN recorded in the employee’s records accurately reflect the referenced employee’s name and SSN. If no internal recordkeeping error is discovered, the employer should instruct the employee to contact the local SSA office to address the issue. The employer should give the employee a reasonable amount of time (120 days is recommended) to correct the issue and provide documentation that the problem has been resolved.

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