All people who work in the United States must have immigration permission to do so. An I-9 form is an immigration document used to verify employment eligibility. All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes both citizens and noncitizens.
Both employees and employers (or authorized representatives of the employer) must complete the form. The law regarding I-9 forms is enforced by Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS).
A new employee must complete an I-9 Form, also called an Employment Eligibility Verification Form, as part of the new-hire paperwork provided by their employer. If an employee is unable to read or write in English, the form allows for a translator or legal preparer to complete the form on behalf of the employee.
On the I-9 form, an employee must attest to their authorization for employment. The employee must also present their employer with acceptable documents evidencing (1) identity and (2) employment authorization. Within three days of hire, the employer then records the eligibility and identity document information on the Form I-9.
While employers are not required to file the I-9 forms with ICE, employers must keep these forms in the company’s file for current as well as past employees, to ensure availability of I-9s during an ICE audit. Employers must retain Form I-9 for three years after the employment date or one year after the termination date, whichever date comes later.
What Is an I-9 Audit?
The United States Immigration and Customs Enforcement (ICE) may audit Form I-9s to assess employees’ employment eligibility and employers’ compliance with immigration laws. Federal immigration officials will review an employer’s I-9 forms to make sure they are accurate, complete, and that all its employees have the proper work authorization.
An audit may be triggered for various reasons, including random samples or reporting by ex-employees. Certain business sectors are more susceptible to I-9 audits, such as food production.
ICE 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
- Payroll copies
What Documents Prove Identity and Employment Authorization?
Acceptable I-9 evidentiary documents include the following:
List A Documents
The documents on List A show both identity and employment authorization. Employees presenting an acceptable List A document may not be asked to present any other document.
- U.S. Passport or U.S. Passport Card
- Form I-551, Permanent Resident Card or Alien Registration Receipt Card (“Green cards”)
- Form I-766, Employment Authorization Document Card
- Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record, and containing an endorsement to work
- Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form
- I-94 or Form I-94A
- Foreign passport containing a Form I-551 stamp or Form I-551 printed notation
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. Employees may present one of the following unexpired List B documents:
- Driver’s license or identification card issued by a state or outlying territory of the U.S., provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
- School ID card with a photograph
- Voter registration card
- U.S. military card or draft record
- Military dependent’s ID card
- U.S. Coast Guard Merchant Mariner Document (MMD) card
- Native American tribal document
- Driver’s license issued by a Canadian government authority
Acceptable List B documents for individuals under the age of 18 who are unable to present a document listed above:
- School record or report card
- Clinic, doctor, or hospital record
- Day care or nursery school record
For minors under the age of 18 and certain individuals with disabilities who are unable to produce any of the listed identity documents, special notations may be used in place of a List B document.
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:
- U.S. Social Security account number card that is unrestricted. A laminated card is acceptable. A card that includes any of the following restrictive wording is not an acceptable List C document:
- NOT VALID FOR EMPLOYMENT
- VALID FOR WORK ONLY WITH INS AUTHORIZATION
- VALID FOR WORK ONLY WITH DHS AUTHORIZATION
- Form FS-240, Consular Report of Birth Abroad
- Form FS-545, Certification of Birth Abroad issued by the U.S. Department of State
- Form DS-1350, Certification of Report of Birth issued by the U.S. Department of State
- 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
- Form I-197, U.S. Citizen ID Card
- Form I-179, Identification Card for Use of Resident Citizen in the United States
- 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
- Form I-571, Refugee Travel Document
- An unexpired Form I-327, Reentry Permit Form N-560
- Certificate of U.S. Citizenship or Form N-561
- Replacement Certificate of Citizenship or Form N-550
- Certificate of Naturalization or Form N-570
- Replacement Certificate of Naturalization
- A Form I-797 issued to a conditional resident may be an acceptable List C document in combination with his or her expired Form I-551
The employer must examine the employment eligibility and identity document(s) to determine whether the document(s) reasonably appear to be genuine and to relate to that specific employee. The list of acceptable documents is long, and employers may not ever see some of them. For ease of identifying acceptable documents, the U.S. Citizenship and Immigration Services (USCIS) maintains a website with images of each of these documents.
Are There Exceptions to the I-9 Requirements?
A Form I-9 does not have to be completed if:
- The employee was hired on or before Nov. 6, 1986 (or on or before Nov. 28, 2009, if employment is in the Commonwealth of the Northern Mariana Islands) and has a reasonable expectation of employment at all times
- The employee is doing casual domestic work in a private home
- The employee is an independent contractor
- The employee is employed by a contractor providing contract services, such as a temp agency
- The employee is not working on U.S. soil
Discrimination Is Prohibited
The 1986 Immigration Reform and Control Act (IRCA) deemed American employers legally responsible for verifying the employment eligibility of all new employees. While the I-9 Form is not required for volunteers or contract-based employees, foreign nationals on employment visas are required to complete the form.
The legislation also includes anti-discrimination clauses. Under the IRCA, U.S. citizens, permanent residents, and asylum seekers legally allowed to work in the United States cannot be denied employment or be terminated based on country of origin or citizenship. The IRCA’s anti-discrimination policy is enforceable for all employers with three or more workers.
Employers’ Form I-9 Compliance: How to Avoid Costly Errors
Below are some suggestions that provide employers with protection against unfavorable inspection results. However, every situation is unique, and the advice of a qualified attorney is appropriate to determine Form I-9 compliance.
- If you’ve completed Form I-9 late (which you should always avoid), never backdate an I-9, as that would be considered fraud
- Fill out Form I-9 required information completely, even if you retain copies of the requested documents
- Request proof of continued employment eligibility if the employee’s work authorization is the type that can expire
- However, do not reconfirm employment eligibility by requesting new documents when you have been presented with an unexpired green card
- Employers and employees must sign and date the form; otherwise, an employer may have committed a substantive error
- Develop training and guidelines for human resources or other employees who will be completing I-9s on your company’s behalf
What Powers Does ICE Possess?
ICE is considered to be the enforcement arm of the DHS. ICE can detain anyone who is a suspected:
When ICE suspects someone may have broken immigration laws, the agency may detain the suspect for 48 hours without having a search warrant. The time period may be longer when there is an emergency situation.
Once 48 hours have passed, ICE is required to either begin the deportation process or release the detainee. The detainee can challenge their detention by submitting an argument that they are not an illegal immigrant, human trafficker, terrorist, or a member of a group ICE is tasked with deporting.
When there are legal issues or complications, an individual’s detainment may be extended. Once six months have passed, the detainee can request a court hearing.
An indefinite detention can happen when the detained individual is not able to return to their country of origin. When this occurs, the detainee can request a writ of habeas corpus, challenging their detainment in court.
Miranda warnings that are typically used in criminal detainment situations do not apply to immigration arrests because these proceedings are considered to be civil and not criminal. A detainee, however, does retain their right to remain silent.
If ICE asks an individual if they can conduct a search or questions about their immigration status, the detainee can make a verbal statement that they did not consent. In addition, no documents should be signed without first having a lawyer review them. Noncitizens are entitled to certain Fourth and Fifth Amendment protections, allowing them to invoke these rights.
What Types of Evidence and Documents Are Required In Court for a Deportation or Removal Case?
If a detainee has a removal or deportation case, they should have certain documents ready to provide to establish the credibility of any claims they make in their case. Common examples of documents that may either be required or very helpful in proving different issues include:
- Personal identification documents, such as:
- birth certificates
- government-issued IDs that establish identity and connections in the U.S.
- marriage certificates
- Proof of physical presence, such as:
- employment records
- utility bills that show residence in the U.S. for a certain period
- lease agreements
- Proof of family ties that demonstrate relationships to citizens or permanent residents.
- They may include marriage certificates or birth certificates of a child who was born in the United States.
- Proof of good moral character, such as:
- criminal background checks
- letters of recommendation
- certifications of community service
- Evidence of hardship, which may include:
Other types of documents may also be recommended, or even necessary, depending on the facts of an individual’s case. Due to the potential for updates to immigration laws at any time, especially with changes in presidential administrations, it is very important to consult with an immigration lawyer to ensure everything needed is available.
What Different Immigration Laws May Apply to I-9 Issues?
There are various immigration laws that may apply to I-9 issues and audits. It is important to be aware that what is discussed below may not include all applicable laws.
One important law that often applies to almost every immigration issue, including I-9 is the Immigration and Nationality Act (INA). In addition to the INA, there are several executive orders that apply to immigration issues, which are discussed below.
- Executive Order Realigning the United States Refugee Admissions Program (USRAP)
- USRAP limits who can seek entry into the United States. Sometimes, refugees can be admitted on a case-by-case basis.
- At this time, USRAP is indefinitely suspended.
- Executive Order Protecting the American People Against Invasion
- This order explains updated information and policies related to enforcing deportation and removal, unlawful presence for those present in the United States unlawfully, and enforcement of illegal entry.
- The order also expands expedited removal.
- Executive order Protecting the Meaning and Value of American Citizenship
- This order terminates birthright citizenship.
- The term anchor baby status is another term for babies who are granted birthright citizenship.
- Birthright citizenship is when a child is automatically given citizenship in the United States after they were born in the United States.
- Under this order, birthright citizenship will only be given when one parent of the child is a permanent resident or citizen of the United States.
- If one parent is in the U.S. on a temporary visa, the child will not be provided birthright citizenship.
- This order is not currently being enforced due to an injunction.
- Executive Order Guaranteeing the States Protections Against Invasion
- This prohibits people from entering the U.S. at its southern borders. Applicants, however, can be admitted on a case-by-case basis by the Secretary of State and Department of Homeland Security (DHS).
Every immigration law on the books can potentially affect a person’s immigration, removal, and deportation case. These laws may also be changed at any time, so consulting with an immigration attorney is essential. This is especially important in immigration cases because immigration issues can affect both the detainee and their loved ones.
Do I Need an Attorney to Comply With I-9 Form Requirements?
Employers may need to contact a qualified I-9 immigration attorney to develop consistent practices of compliance and oversight with respect to acquiring and retaining employment eligibility verifications.
A qualified attorney may also ensure that employers don’t violate Immigration and Nationality Act (INA) anti-discrimination provisions or other state and federal antidiscrimination laws.
If ICE notifies you that you will be the subject of an I-9 audit, it is best to contact an experienced immigration attorney, who can protect your rights, review your I-9 forms and related documents, and help you prepare for the audit.
If you have a moment, you can take advantage of the free lawyer matching services provided by LegalMatch online to find an immigration lawyer near you who can help with your I-9 issue or concern. When you complete the online submission process, you can select the language preferences you have to ensure clear communication with your lawyer.
In addition, many licensed and prescreened LegalMatch member attorneys have free initial consultations, which means you can potentially be matched with an interview multiple attorneys at no cost to you. You are not required to hire any lawyer you speak with, so get started today resolving your I-9 case.
