Q. Do citizens and nationals of the United States need to prove they are eligible to work?
- A: 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?
- A. 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?
- A. 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”?
- A. 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?
- A. 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 three business days of the date employment begins?
A. 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 three 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?
- A. Yes. You can terminate an employee who fails to produce the required document or documents, or a receipt for a document, within three 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?
A. 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:
- Ensured that employees fully and properly completed Section 1 of the I-9 at the time employment began;
- Reviewed the required documents which should have reasonably appeared to have been genuine and to have related to the person presenting them;
- Fully and properly completed Section 2 of the I-9, and signed and dated the employer certification;
- Retained the I-9 for the required period of time; and
- Made the I-9 available upon request to an INS, DOL (Department of Labor), or OSC (Office of Special Counsel) officer.
Q. May I specify which documents I will accept for verification?
A. 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?
A. 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.
- 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?
- A. 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?
A. 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
A. 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?
- A. 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?
- A. 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?
A. 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?
- A. 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?
- A. 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?
A. 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.
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?
- A. 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?
A. 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?
A. 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.
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.
NOTE 2: Copies of documents retained by Federal government employers must be kept separately from an employee’s official personnel folder.
Q. When do I fill out the I-9 if I hire someone for less than 3 business days?
A. 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?
A. 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?
A. 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?
A. 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?
A. 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.
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?
A. 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?
A. 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?
A. 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?
A. 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?
A. 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?
A. 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.
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.
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?
A. 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?
A. 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?
A. 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?
A. 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?
A. 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?
A. 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.
Q. How can I avoid discriminating against certain employees while still complying with this law?
A. 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?
A. 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?
A. 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.
Q. Does this law apply to my employees if I hired them before November 7, 1986?
A. 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.
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?
A. 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?
A. 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.
Q. What advice should I give to my employees applying to legalize their status concerning their Federal income tax obligations?
A. 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?
A. 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.