Before new employees may begin their job, they must present their employer with proof of their legal right to work in the United States.
Regardless of their citizenship, visa status, or country of origin, every new employee must complete Form I-9, also called an Employment Eligibility Verification Form. This form certifies the employee’s identity and their eligibility to work in the United States. The employee must also present their employer with documents evidencing (1) identity and (2) employment authorization.
The form must be completed within 3 working days from the hire date. Both employees and employers (or authorized representatives of the employer) must complete the form. If the company doesn’t confirm its employees’ work authorization validity through completing and maintaining I-9 forms, they risk significant penalties and fines.
Immigration authorities maintain a system called “E-Verify” so that employers can check on the eligibility of individual employees. E-Verify electronically compares an employee’s I-9 information to records available to the Social Security Administration and the U.S. Department of Homeland Security.
What is Required for the I-9 Form?
Form I-9 requires the employer to do the following:
- Request forms of identification from the employee and review them to be reasonably sure they are not false or invalid
- Complete the verification section and record which documents were presented to the employer
- Ensure that the form is fully and legibly completed
- Both the employee and a representative of the employer must sign the form
- Retain copies of the forms for 3 years after the employment date or 1 year after the termination date, whichever date comes later.
A completed I-9 form will comply with federal law and provide the employer with a good defense if they are later accused of knowingly hiring illegal aliens.
What Documents Prove Identity and Employment Authorization?
The list of acceptable documents is lengthy. Some of them the employer will never have seen. To easily identify acceptable documents, the United States Citizenship and Immigration Service (USCIS) maintains a website with images of each document.
Acceptable I-9 evidentiary documents are:
List A documents
The documents on List A show identity and employment authorization, and if an employee presents a List A document, they need not present any other document (in fact, it is against the law to ask them to present a second document).
Examples of List A documents are:
- U.S. Passport or U.S. Passport Card
- Permanent Resident Card or Alien Registration Receipt Card (green card)
- Employment Authorization Document Card (EAD)
- Passport from an American territory
- A foreign passport containing a Form I-551 stamp or Form I-551 printed notation
- Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record, and the I-94 card contains an
- endorsement to work
List B documents
The documents on List B establish only identity. Employees who choose to present a List B document must also present a document from List C that establishes work authorization. Employees may present one of the following unexpired List B documents (there are more acceptable documents, but these are the most common):
Driver’s license or identification card issued by a state or outlying territory of the U.S.
- Canadian driver’s license
- School ID card with a photograph
- Voter registration card
- U.S. military ID card
- Native American tribal document
- Military dependent’s ID card
- U.S. Coast Guard Merchant Mariner Document (MMD) card
- Receipt to replace a lost, stolen, or damaged List B document
Acceptable List B documents for minors under the age of 18 who are unable to present a document listed above:
- School record or report card
- Clinic, doctor, or hospital record
- Daycare or nursery school record
List C Documents
The documents in List C only establish employment authorization. Employees who choose to present a List C document must also provide a document from List B, evidence of identity.
Employees may present one of the following unexpired List C documents (again, there are more acceptable documents, but these are the most common):
- U.S. Social Security account number card that is unrestricted. A laminated card is acceptable. A card that includes any of the following statements is not an acceptable List C document:
- NOT VALID FOR EMPLOYMENT
- VALID FOR WORK ONLY WITH USCIS AUTHORIZATION
- VALID FOR WORK ONLY WITH DHS AUTHORIZATION
- Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying territory of the United States bearing an official seal
- Native American tribal document
- U.S. Citizen ID Card
- Identification Card for Use of Resident Citizen in the United States
- Consular Report of Birth Abroad
- Certification of Birth Abroad issued by the U.S. Department of State
- Certification of Report of Birth issued by the U.S. Department of State
- Employment authorization document issued by the Department of Homeland Security (DHS). Some employment authorization documents issued by DHS include but are not limited to:
- Form I-94 Arrival/Departure Record issued to asylees or work-authorized nonimmigrants (for example, H-1B nonimmigrants) because of their immigration status
- Refugee Travel Document
- Certificate of Naturalization
- Replacement Certificate of Naturalization
- An unexpired Reentry Permit
- Certificate of U.S. Citizenship
- Replacement Certificate of Citizenship
What is an I-9 Audit?
An immigration I-9 audit is when immigration officials review, or “audit,” an employer’s I-9 forms to verify that they are properly completed and that all the employees are authorized to work in the U.S. The audit may be conducted by either Immigration and Customs Enforcement (“ICE”) or Homeland Security Investigations (“HSI”), a division within ICE.
Immigration officials do not need a warrant to conduct an I-9 audit. They must, however, issue employers a document called a Notice of Inspection at least three days before the audit. Immigration officials may ask the employer to send them their records, or they may come to the workplace to review them.
An audit may be triggered randomly, by reporting from an unhappy ex-employee, or for various other reasons. Some business sectors, such as food production, are more susceptible to I-9 audits.
USCIS may request the I-9 forms and the following additional documents:
- A list of all current employees
- A list of employees terminated in the last three years
- Corporate documents
- Business licenses
- Copies of payroll documents
What Repercussions Result from Failure to Complete I-9 Forms?
There may be severe legal repercussions if the immigration status of an employee is not confirmed and documented on the I-9 form. The size of the penalty depends on several factors, including the number of violations, company size, and whether the absence of I-9 forms appears to be intentional.
- For 1-9 paperwork violations in 2022, the penalties range from $252 to $2,507 for the first offense for technical areas or substantive violations
- The range is $1,161 to $2,322 for second and subsequent paperwork offenses
- For recruiting, referral, and rehiring unauthorized non-citizens violations, the penalties range from $627 to $5016 for the first offenses for each knowingly employed unauthorized worker
- The penalties range from $5,016 to $25,076 for second and subsequent offenses
- Criminal charges concerning intentional behavior (such as assisting in the deception of an immigration authority)
- For egregious cases of repeated offenses, possible jail time
- The employer’s business operation license being revoked or suspended
Do I Need an Attorney to Review My I-9 Forms?
Trouble may arise if an employer fails to have all employees complete a Form I-9. If a question arises about the validity of an employee, it is a good idea to consult an experienced employment attorney immediately. As mentioned above, the penalties for violations can be harsh.
An attorney can advise you about your rights and possible defenses and represent you before the immigration authorities.