It is unlawful to knowingly hire or continue to employ unauthorized workers in the U.S. Employers must verify the identity and employment authorization of every employee hired after Nov. 6, 1986, by use of Form I-9.
When Must Form I-9 Be Completed?
• Section 1 must be completed by the employee at the time employment begins (Day 1).
• Section 2 must be completed by the employer by Day 3 of employment (or by Day 1 if working three or fewer days).
• Section 3 (if applicable) must be completed by the expiration date of the foreign national’s work authorization.
Do not back-date entries; supplement or add a note to explain a good-faith attempt to comply, if necessary.
Employee Completion of Section 1 on Form I-9
• Make sure the employee completes all items in Section 1 and signs/dates the form. If it is not completed properly, signed or dated, the employer assumes liability for false statements.
• If the employee selects the box for “Lawful Permanent Resident” or “Alien Authorized to Work,” the employee MUST provide either:
1. The Alien Registration/USCIS Number (found on a Green Card/I-551 or EAD card); OR
2. Form I-94 admission number (https://i94.cbp.dhs.gov) with foreign passport information.
3. NOTE: Alien authorized to work until __/__/__ = expiration date of work permission and the number either on the EAD card or on the I-94 card.
• Providing a Social Security number is OPTIONAL for I-9 (unless enrolled in E-Verify), but it is usually required for other employment purposes and forms. If approval of an SSN is pending, the employer should write “pending” and later update once the SSN is received. The employer should also initial and date the change.
Employer Completion of Section 2 and Review of Documents
• The employer should review the list of acceptable documents: I-9 List of Acceptable Documents
• The employer may only accept ORIGINAL documents for I-9 inspection (except a certified copy of a birth certificate, if applicable).
• Employees must always have choice of what documents to present. The employer cannot ask to see any specific immigration document. However, for I-9 completion, the employer may only accept appropriate documentation from either List A documents, or a combination of documents from List B and C.
• The employer must not “over-document” – stay on one side or the other of the “documentary line” dividing List A documents from List B and C documents. The employer should NOT accept a combination of documents from List A with List B or C for I-9 completion.
• If insufficient documents are presented, the employer must allow the employee to satisfy requirements within three business days of the date employment begins.
• The employer should be sure to record the date the document expires, if applicable.
• The employer may terminate an employee who fails to produce the required document or documents, or an acceptable receipt for a document, within three business days of the date employment begins.
Employer’s May NOT Discriminate or Request Specific Documents
Employers may not discriminate against individuals based on citizenship, lawful permanent resident status or national origin. It is unlawful to:
• Require an individual to produce any particular type of work authorization to complete the I-9;
• Request more documents than the law requires (unless investigating a “known” violation);
• Refuse to accept documents that appear to be genuine on their face; or
• Refuse to hire an individual because a document has an expiration date.
What is the Employer’s Standard of Review for Documents?
An employer MUST accept an I-9 List document if it reasonably appears on its face to be genuine, relates to the individual who presents it and satisfies the requirement for documentation from either List A documents or a combination of documents from List B and C. If not, you must explore further.
I-9 issues can be very complex. There are many nuances to properly completing the form under certain circumstances (H-1B change of employers, pending immigration matters, independent contractors, Social Security issues, etc.). Employers should be familiar with all I-9 requirements, including rules concerning reverification and document retention. Penalties for non-compliance can be severe.
Please contact Berardi Immigration Law today with any I-9-related questions you may have.