Frequently Asked Questions about I-9 Compliance

Basic Requirements of I-9 Compliance:

What is required to verify work authorization?
Who must complete the Form I-9?
Why must United States citizens fill out I-9 forms?
Do I need to complete a Form I-9 for everyone who applies for a job with my company?
When must the Form I-9 be completed?
Can I terminate an employee who fails to produce the required documents within three business days?

Acceptable Documents for I-9 Form

What are the legally acceptable documents that a new hire can show for I-9 purposes?
Can I refuse to hire a person who does not have a U.S. birth certificate or a green card but has other papers?
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?
When filling out the I-9 Form, can I accept a social security card from an alien as proof of work authorization?
If the person shows one of the identity documents, does the employer need anything more?
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?
What is my responsibility concerning the authenticity of documents presented to me?
May I accept a photocopy of a document presented by a new hire?

Expiration of Documents and Re-verification

Do I have to re-verify the employment eligibility of a worker whose permanent resident card has expired?
Can I accept expired documents to establish a new hires identity for I-9 purposes?
Can I refuse to hire a person who shows an employment authorization card that will expire in three months, if the job is permanent?

File Retention

May I copy documents presented for I-9 purposes?
How long must an employer retain an employees I-9 form?

Employer Sanctions

What penalties may be imposed if I do not complete or keep the I-9 forms as required?
Are there other employer requirements besides completing the Form I-9?

Basic Requirements of I-9 Compliance

What 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 (USCIS) 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 fill out 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 were 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. Receipts are not acceptable, however, if employment lasts fewer than three business days.

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 replacement document(s) (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 Form

What 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 USCIS's table of acceptable I-9 documents.

Documents listed in List A establish both identity and authorization to work in the United States.
List B documents only establish identity.
List C documents only establish employment eligibility, meaning the person is authorized to work in the United States.

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 review the other documents 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 cannot 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 with any of these statements do not establish employment eligibility and should not be accepted as proof of work authorization. If the person states he or she is now employment-authorized, he or she must visit a local Social Security office with proof of lawful employment status to apply for a Social Security Card without restrictions

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.

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 Re-verification

Do I have to re-verify the employment eligibility of a worker whose permanent resident card has expired?

Employers should not re-verify Lawful Permanent Residents (LPRs) who presented a Permanent Resident Card (Form I-551) for Section 2 of the I-9 Form. Additionally, the following documents should not be re-verified: an expired U.S. Passport or Passport Card, an Alien Registration Receipt Card, or a List B document that has expired

Can I accept expired documents to establish a new hire's identity for I-9 purposes?

Generally, no. Expired documents are no longer acceptable for Form I-9. However, the USCIS Handbook for Employers (page 43) specifically states that "You may accept Employment Authorization Documents (Forms I-766) and Permanent Resident Cards (Forms I-551) that appear to be expired on their face, but have been extended by USCIS.”

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 Retention

May I copy documents presented for I-9 purposes?

The USCIS Handbook for Employers (page 44) states, “If you participate in E-Verify and the employee presents a document used as part of Photo Matching, currently the U.S. passport and passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766), you must retain a photocopy of the document he or she presents. Other documents may be added to Photo Matching in the future. If you do not participate in E-Verify, you are not required to make photocopies of documents.”

If you do not participate in E-Verify, and 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?

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. They may be stored either on paper or electronically. See page 27 of USCIS Handbook for Employers for DHS electronic record retention requirements.

Employer Sanctions

What penalties may be imposed if I do not complete or keep the I-9 forms as required?

The law provides for penalties in an amount not less than $110 and not more than $1,100 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 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, for retaliation, 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.