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Some Questions You May Have About the Form I-9
Source: Excerpted from the Immigration & Naturalization
Service (INS) Publication, "Handbook for Employers: Instructions
for Completing Form I-9" (11/91)
Questions About the Vertification
Process
Q. Do citizens and nationals of the United States need
to prove they are eligible to work?
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Yes. While citizens and nationals of the United States
are automatically eligible for employment, they too must present
the required documents and complete an I-9. Citizens of the United
States include persons born in Puerto Rico, Guam, the Virgin Islands,
and the Northern Mariana Islands. Nationals of the United States
include persons born in American Samoa, including Swains Island.
Q. Do I need to complete an I-9 for everyone who applies
for a job with my company?
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No. You need to complete I-9s only for people you actually
hire. For purposes of this law, a person is "hired" when
he or she begins to work for you.
Q. If someone accepts a job with my company but will not
start work for a month, can I complete the I-9 when the employee accepts
the job?
-
Yes. The law requires that you complete the I-9 only
when the person actually begins working. However, you may complete
the form earlier, as long as you complete the form at the same point
in the employment process for all employees.
Q. I understand that I must complete an I-9 for anyone
I hire to perform labor or services in return for wages or other remuneration.
What is "remuneration"?
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Remuneration is anything of value given in exchange
for labor or services rendered by an employee, including food and
lodging.
Q. Do I need to fill out an I-9 for independent contractors
or their employees?
-
No. For example, if you contract with a construction
company to perform renovations on your building, you do not have
to complete I-9s for that company's employees. The construction company
is responsible for completing the I-9s for its own employees. However,
you must not knowingly use contract labor to circumvent the law against
hiring unauthorized aliens.
Q. What should I do if the person I hire is unable to provide
the required documents within 3 business days of the date employment
begins?
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If an employee is unable to present the required document
or documents within 3 business days of the date employment begins,
the employee must produce a receipt showing that he or she has applied
for the document. In addition, the employee must present the actual
document to you within 90 days of the hire. The employee must have
indicated on or before the time employment began, by having checked
an appropriate box in Section 1, that he or she is already eligible
to be employed in the United States.
-
NOTE: Employees hired for less than
3 business days must produce the actual document(s) and the I-9
must be fully completed at the time employment begins.
Q. Can I fire an employee who fails to produce the required
documents within 3 business days?
-
Yes. You can terminate an employee who fails to produce
the required document or documents, or a receipt for a document,
within 3 business days of the date employment begins. However, you
must apply these practices uniformly to all employees. If an employee
has presented a receipt for a document, he or she must produce the
actual document within 90 days of the date employment begins.
Q. What happens if I properly complete a Form I-9 and INS
discovers that my employee is not actually authorized to work?
-
You cannot be charged with a verification violation.
You will also have a good faith defense against the imposition of
employer sanctions penalties for knowingly hiring an unauthorized
alien, unless the government can show you had actual knowledge of
the unauthorized status of the employee, if you have done the following:
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Ensured that employees fully and properly completed
Section 1 of the I-9 at the time employment began;
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Reviewed the required documents which should have reasonably
appeared to have been genuine and to have related to the person presenting
them;
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Fully and properly completed Section 2 of the I-9,
and signed and dated the employer certification;
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Retained the I-9 for the required period of time; and
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Made the I-9 available upon request to an INS, DOL
(Department of Labor), or OSC (Office of Special Counsel) officer.
Questions About Documents
Q. May I specify which documents I will accept for verification?
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No. The employee can choose which document(s) he or
she wants to present from the lists of acceptable documents. You
must accept any document (from List A) or combination of documents
(one from List B and one from List C) listed on the I-9 which reasonably
appear on their face to be genuine and to relate to the person presenting
them. To do otherwise could be an unfair immigration-related employment
practice. Individuals who look and/or sound foreign must not be treated
differently in the hiring or verification process.
Q. If an employee writes down an Alien Number or Admission
Number when completing Section 1 of the I-9, can I ask to see a document
with that number?
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No. Although it is your responsibility as an employer
to ensure that your employees fully complete Section 1 at the time
employment begins, there is no requirement that employees present
any document to complete this section.
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When you complete Section
2, you may not ask to see a document with the employee's Alien Number
or Admission Number or otherwise specify which document(s) an employee
may present.
Q. What is my responsibility concerning the authenticity
of document(s) presented to me?
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You must examine the document(s) and, if they 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 the document(s) do not reasonably appear
on their face to be genuine or to relate to the person presenting
them, you must not accept them.
Q. Why are certain documents listed in both List B and
List C? If these documents are evidence of both identity and employment
eligibility, why aren't they found in List A?
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Three documents can be found in both List B and List
C: the U.S. Citizen ID Card and the ID Card for use of Resident Citizen
in the U.S. -- acceptable as ID Cards in List B -- and a Native American
tribal document. Although these documents are evidence of both identity
and employment eligibility, they are not found in List A because
List A documents are limited to those designated by Congress in the
law. An employee can establish both identity and employment eligibility
by presenting one of these documents. You should record the document
title, issuing authority, number, and expiration date (if any) for
that document in the appropriate spaces for both List B and List
C.
Q. Why is a Canadian driver's license acceptable as a List
B document and not a Mexican driver's license?
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The United States-Canada Free-Trade Agreement and other
reciprocal agreements between these two countries form the basis
for accepting a Canadian driver's license as a List B identity document.
No such reciprocal agreements currently exist between the United
States and Mexico that would allow or permit the use of a Mexican
driver's license as a List B identity document.
Q. May I accept an expired document?
-
You may accept an expired United States Passport. You
may also accept an expired document from List B to establish identity.
However, the document must reasonably appear on its face to be genuine
and to relate to the person presenting it. You cannot accept any
other expired documents.
Q. How can I tell if an INS-issued document has expired?
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Some INS-issued documents, such as previous versions
of the Alien Registration Receipt Card (I-151 and I-551), do not
have expiration dates and are valid indefinitely. However, the 1989
revised version of the Alien Registration Receipt Card (I-551), which
is rose-colored with computer readable data on the back, features
a 2-year or 10-year expiration date. Other INS-issued documents,
such as the Temporary Resident Card (I-688) and the Employment Authorization
Card (I-688A or I-688B) also have expiration dates. These dates can
be found either on the face of the document or on a sticker attached
to the back of the document.
Q. Some people are presenting me with Social Security Cards
that have been laminated. May I accept such cards as evidence of employment
eligibility?
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You may not accept a laminated Social Security Card
as evidence of employment eligibility if the card states on the back "not
valid if laminated." Lamination of such cards renders them invalid.
Metal or plastic reproductions of Social Security Cards are not acceptable.
Q. Some people are presenting me with printouts from the
Social Security Administration with their name, Social Security Number,
date of birth, and their parents' names. May I accept such printouts
in place of a Social Security Card as evidence of employment eligibility?
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No. Only a person's official Social Security Card is
acceptable.
Q. What should I do if persons present Social Security
Cards marked "NOT VALID FOR EMPLOYMENT," but state they are
now authorized to work?
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You should ask them to provide another document to
establish their employment eligibility, since such Social Security
Cards do not establish this.
Q. What should I do if one of my employees tells me that
his or her Social Security Number is invalid?
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You should tell the employee to get a proper Social
Security Number by completing a Form SS-5. This form is available
from the Social Security Administration. You do not need to amend
your employment tax returns. However, when the employee gives you
the new number, you should file a Form W-2C with the Social Security
Administration for the years in which you reported income and withholding
under the incorrect number. You will not be penalized or fined for
the years during which you reported employees under incorrect numbers.
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You should also be aware that any Social Security Number
starting with a "9" is not a valid Social Security Number.
Employees who are using such numbers should be instructed to get
a proper Social Security Number using a Form SS-5.
Q. May I accept a photocopy of a document presented by
an employee?
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No. Employees must present original documents. The
only exception is that an employee may present a certified copy of
a birth certificate.
Q. I noticed on the Form I-9 that under List A there are
2 spaces for document numbers and expiration dates. Does this mean I
have to see two List A documents?
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No. One of the documents found in List A is an unexpired
foreign passport with an attached INS Form I-94. The Form I-9 provides
space for you to record the document number and expiration date for
both the passport and the INS Form I-94.
Q. When I review an employee's identity and employment
eligibility documents, should I make copies of them?
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The law does not require you to photocopy documents.
However, if you wish to make photocopies, you should do so for all
employees, and you should retain each photocopy with the I-9. Photocopies
must not be used for any other purpose. Photocopying documents does
not relieve you of your obligation to fully complete Section 2 of
the I-9 nor is it an acceptable substitute for proper completion
of the I-9 in general.
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NOTE 1: Although a Certificate of
Naturalization (INS Forms N-550 and N-570) provides across the
face of the document that it may not be copied, such certificates
may be copied in this limited situation.
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NOTE 2: Copies of documents retained
by Federal government employers must be kept separately from an
employee's official personnel folder.
Questions About
Completing and Retaining the Form I-9
Q. When do I fill out the I-9 if I hire someone for less
than 3 business days?
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You must complete both Sections 1 and 2 of the I-9
at the time of the hire. This means the I-9 must be fully completed
when the person starts to work.
Q. What should I do if I rehire a person who previously
filled out an I-9?
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You do not need to complete a new I-9 if you rehire
the person within three years of the date that the I-9 was originally
completed, and the employee is still eligible to work. You should
review the previously completed I-9, and if the employee's work authorization
has not expired, note the date of rehire in the Updating and Reverification
Section on the I-9 (Section 3), and sign in the appropriate space.
If the employee's work authorization has expired, you also need to
examine a document that reflects that the employee is authorized
to work in the U.S., and record the document title, number, and expiration
date (if any) in Section 3.
Q. What should I do if I need to update or reverify an
I-9 for an employee who filled out an earlier version of the form?
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You may line through any outdated information and initial
and date any updated information. You may also choose, instead, to
complete a new I-9.
Q. Do I need to complete a new I-9 when one of my employees
is promoted within my company or transfers to another company office
at a different location?
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No. You do not need to complete a new I-9 for such
promoted or transferred employees.
Q. What do I do when an employee's work authorization expires?
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You will need to reverify on the I-9 in order to continue
to employ the person. Reverification must occur not later than the
date that work authorization expires. The employee must present a
document that shows either an extension of the employee's initial
employment authorization or new work authorization. You must review
this document and, if it reasonably appears on its face to be genuine
and to relate to the person presenting it, record the document title,
number, and expiration date (if any), in the Updating and Reverification
Section on the I-9 (section 3), and sign in the appropriate space.
You may want to establish a calendar call-up system for employees
whose employment authorization will expire in the future.
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NOTE: You cannot refuse to accept a document because
it has a future expiration date. You must accept any document (from
List A or List C) listed on the I-9 which on its face reasonably
appears to be genuine and to relate to the person presenting it.
To do otherwise could be an unfair immigration-related employment
practice.
Q. Can I avoid reverifying the I-9s by not hiring persons
whose employment authorization has an expiration date?
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You cannot refuse to hire persons solely because their
employment authorization is temporary. The existence of a future
expiration date does not preclude continuous employment authorization
for an employee and does not mean that subsequent employment authorization
will not be granted. In addition, consideration of a future employment
authorization expiration date in determining whether an alien is
qualified for a particular job could be an unfair immigration-related
employment practice.
Q. As an employer, do I have to fill out all the I-9s myself?
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No. You may designate someone to fill out the I-9s
for you, such as a personnel officer, foreman, agent, or anyone else
acting in your interest. However, you are still liable for any violations
of the employer sanctions laws.
Q. Can I contract with someone to complete the I-9s for
my business?
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Yes. You can contract with another person or business
to verify employees' identity and work eligibility and to complete
the I-9s for you. However, you are still responsible for the contractor's
actions and are liable for any violations of the employer sanctions
laws.
Q. As an employer, can I negotiate my responsibility to
complete the I-9s in a collective bargaining agreement with a union?
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Yes. However, you are still liable for any violations
of the employer sanctions laws. If the agreement is for a multi-employer
bargaining unit, certain rules apply. The association must track
the employee's hire and termination dates each time the employee
is hired or terminated by an employer in the multi-employer association.
Q. What are the requirements for retaining the I-9?
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If you are an employer, you must retain the I-9 for
3 years after the date employment begins or 1 year after the date
the person's employment is terminated, whichever is later. If you
are an agricultural association, agricultural employer, or farm labor
contractor, you must retain the I-9 for 3 years after the date employment
begins for persons you recruit or refer for a fee.
Q. Will I get any advance notice if an INS, DOL, or OSC
officer wishes to inspect my I-9s?
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Yes. The officer will give you at least 3 days (72
hours) advance notice before the inspection. If it is more convenient
for you, you may waive the 3-day notice. You may also request an
extension of time in which to produce the I-9s. The INS, DOL, or
OSC officer will not need to show you a subpoena or a warrant at
the time of the inspection.
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NOTE: This does not preclude the
INS, the DOL, or the OSC from obtaining warrants based on probable
cause for entry onto the premises of suspected violators without
advance notice.
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Failure to provide the I-9s for inspection is a violation
of the employer sanctions laws and could result in the imposition
of civil money penalties.
Q. Do I have to complete an I-9 for Canadians who entered
the United States under the Free Trade Agreement?
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Yes. You must complete an I-9 for all employees. Canadians
must show identity and employment eligibility documents just like
all other employees.
Q. If I acquire a business, can I rely on the I-9s completed
by the previous owner/employer?
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Yes. However, you also accept full responsibility and
liability for all I-9s completed by the previous employer relating
to individuals who are continuing in their employment.
Q. If I am a recruiter or referrer for a fee, do I have
to fill out I-9s on persons whom I recruit or refer?
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No, with three exceptions. Agricultural associations,
agricultural employers, and farm labor contractors are still required
to complete I-9s on all individuals who are recruited or referred
for a fee. However, all recruiters and referrers for a fee must still
complete I-9s for their own employees hired after November 6, 1986.
Also, all recruiters and referrers for a fee are still liable for
knowingly recruiting or referring for a fee aliens not authorized
to work in the United States.
Q. Can I complete Section 1 of the I-9 for an employee?
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Yes. You may help an employee who needs assistance
in completing Section 1 of the I-9. However, you must also complete
the "Preparer/Translator Certification" block. The employee
must still sign the certification block in Section 1.
Q. If I am a business entity (corporation, partnership,
etc.), do I have to fill out I-9s on my employees?
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Yes, you must complete I-9s for all of your employees,
including yourself.
Q. I have heard that some state employment agencies can
certify that people they refer are eligible to work. Is that true?
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Yes. State employment agencies may elect to provide
persons they refer with a certification of employment eligibility.
If one of these agencies refers potential employees to you with a
job order or other appropriate referral form, and the agency sends
you a certification within 21 business days of the referral, you
do not have to check documents or complete an I-9 if you hire that
person. However, you must review the certification to ensure that
it relates to the person hired and observe the person sign the certification.
You must also retain the certification as you would an I-9 and make
it available for inspection, if requested. You should check with
your state employment agency to see if it provides this service and
become familiar with its certification.
Questions About Avoiding Discrimination
Q. How can I avoid discriminating against certain employees
while still complying with this law?
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You can avoid discriminating against certain employees
and still comply with the law by applying the employment eligibility
verification procedures of this law to all newly hired employees
and by hiring without respect to the national origin or citizenship
status of those persons authorized to work in the United States.
To request to see identity and employment eligibility documents only
from persons of a particular origin, or from persons who appear or
sound foreign, is a violation of the employer sanctions laws and
may also be a violation of Title VII of the Civil Rights Act of 1964.
You should not discharge present employees, refuse to hire new employees,
or otherwise discriminate on the basis of foreign appearance, accent,
language, or name.
Q. I know that the Act prohibits discrimination on the
basis of citizenship status against "protected individuals." Who
are protected individuals?
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Protected individuals include citizens or nationals
of the United States, lawful permanent residents, temporary residents,
and persons granted refugee or asylee status. The term does not include
aliens in one of those classes who fail to make a timely application
for naturalization after they become eligible.
Q. Can I be charged with discrimination if I contact the
INS about a document presented to me that does not reasonably appear
to be genuine and relate to the person presenting it?
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No. The anti-discrimination provisions of the Act only
apply to the hiring and discharging of individuals. While you are
not legally required to inform the INS of such situations, you may
do so if you choose to.
Questions About Employees Hired Before Nov. 7, 1986
Q. Does this law apply to my employees if I hired them
before November 7, 1986?
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No. You are not required to complete I-9s for employees
hired before November 7, 1986. However, if you choose to complete
I-9s. for these employees, you should do so for all your current
employees hired before November 7, 1986.
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NOTE: This "grandfather" status
does not apply to seasonal employees, or to employees who change
employers within a multi-employer association.
Q. What if an employee was hired before November 7, 1986,
but has taken an approved leave of absence?
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You do not need to complete an I-9 for that employee
if the employee is continuing in his or her employment and has a
reasonable expectation of employment at all times. However, if that
employee has quit or been terminated, or is an alien who has been
removed from the United States, you will need to complete an I-9
for that employee.
Q. Will I be subject to employer sanctions penalties if
an employee I hired before November 7, 1986, is an illegal alien?
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No. You will not be subject to employer sanctions penalties
for retaining an illegal alien in your workforce if the alien was
hired before November 7, 1986. However, the fact that an illegal
alien was on your payroll before November 7, 1986, does not give
him or her any right to remain in the United States. Unless the alien
obtains permission from the INS to remain in the United States, he
or she is subject to apprehension and removal.
Questions About Federal Income Tax Obligations
Q. What advice should I give to my employees applying to
legalize their status concerning their Federal income tax obligations?
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You can advise employees that when they apply to INS
for permanent resident status, they will be given an IRS publication
explaining requirements for filing Form W-4 or W-4A to insure correct
withholding of tax records (if an invalid social security number
was used) and other guidelines relating to tax benefits.
Q. What advice should I give to newly-hired employees who
ask about their Federal income tax obligations?
First, you can tell them it is important to have a valid
social security number and to properly complete a W-4 or W-4A so that
the employer can withhold the proper amount for income tax. Second, you
can encourage employees to apply for social security numbers for their
dependent children who will be five years old or older by the end of
the year. Since 1987, such numbers have been required to be provided
for dependents claimed on tax returns.
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