Q: Do we need to fill out an Immigration Form I-9 for independent contractors or contract workers from a temp agency?

Call Mark Soycher at the HR Hotline: 860.244.1900.
Call Mark Soycher at the HR Hotline: 860.244.1900.

A: Generally you do not have to complete Form I-9 in this case, but as usual, there are some caveats. First, be careful to evaluate whether or not your independent contractor meets the state and federal criteria for contractor status. State and federal labor and tax officials are on the hunt for misclassified contractors who are actually employees, seeking to recover unpaid unemployment, Social Security, and other payroll taxes, as well as ensure that workers are not deprived of protections under the unemployment and workers' comp systems or overtime provisions, or credit toward retirement under Social Security.

If the workers in question are properly classified as independent contractors, you are not obligated to complete the Form I-9.

However, the immigration law also clearly states that you cannot do through a contractor what would be illegal to do directly. That means you cannot engage the services of a contractor or receive services from a temp agency contract worker knowing that the worker is not legally authorized to work under the immigration law.

As a result, it might be prudent to include in your contractor agreement a statement that the person performing the work on a contract basis is eligible to work under U.S. immigration laws. And you should expect to see in a temp agency's contract terms that all temporary workers have been documented as authorized to work under applicable immigration law.