Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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I-9/Employment Eligibility FAQs

Q: What is the I-9 Requirement?

A: The I-9 requirement is a government regulatory requirement that an employer verify both the identity of employees, and that the employees are legally authorized to work in the U.S. This I-9 verification process must be performed when hiring new employees, and must be repeated when certain time-limited documents expire.

Q: Do employers need to comply with the I-9 requirement in all situations?

A: While no employer is uniformly exempt from the requirement, in certain specific situations the employer need not complete an I-9.

The I-9 requirement does not apply to individuals working on an irregular basis performing domestic work in a private home or independent contractors & employees of independent contractors (obviously, an employer cannot simply contract with a person who can't show the required documents in order to avoid the requirement that the person be authorized to accept employment).

The I-9 requirement came into being by law in November of 1986, and employees already on the payroll at that time are "Grandfathered" - no I-9 need be completed for them.

However, these are fairly circumstances - the great majority of employment situations will call for completing an I-9, every time.

Q: How does the employer comply with the I-9 requirement?

A: There are many aspects to the I-9 requirement - far too many to describe completely here. For a more thorough but general treatment, the employer should obtain and read the M-274 Handbook for Employers, which can be downloaded as an Adobe Acrobat file from the USCIS web site.

The Handbook for Employers also contains a copy of the actual I-9 form. For any questions specific to a particular business or situation, consult a qualified immigration lawyer. Here, we will describe only the most basic compliance obligations which even a small business with one employee will need to understand.

An employer must complete an I-9 form for each employee by the third business day after the employee begins work for the company (unless the intended employment will last less than three days, in which cases the I-9 must be completed on the first business day or before). Whether the employer chooses to complete the I-9 before hire, on the first work day, or on the second or third work day, the policy should be consistent for all employees.

To complete the form, the employer should have the new employee complete Section 1, then the employer should complete Section 2 using documents presented by the employee. Section 2 contains three lists of acceptable documents: List A which contains documents which prove both identity and employment eligibility, List B which contains documents which prove only identity, and List C which contains documents which prove only employment eligibility.

To properly complete Section 2, the employer must view either one List A document, or one each of a List B and a List C document. It is important that the employer not demand any specific document (no "let me see your green card" requests) - the best course is to show the employee the lists and let the employee decide what they wish to present. Any information about the document requested on the I-9 form should be filled in by the employer.

The employer should then complete and sign the bottom of Section 2.

If the document presented had a date of expiration, the employer should mark its calendar to reverify on the date of expiration (and no later). Section 3 of the I-9 form should be used for this purpose, or if already used for a previous reverification a new I-9 form can be used (but complete Section 3 on the new form, not Section 2, and keep the new form with the original). If an employer rehires an employee who had completed an I-9 form when they had earlier worked for the same employer, the same reverification procedures can be followed or a new I-9 can be completed.

Again, this information is only the most basic - special rules apply to special situations (for instance, completing the I-9 for certain minors and certain disabled employees), and seeking legal guidance is critical.

Q: Once the I-9 has been completed, what does the employer need to do with the I-9 Form?

A: The I-9 is never actually submitted directly to the government by the employer. However, the employer has specific record-keeping obligations with regard to I-9 forms. All I-9s must be kept for three years from the date of hire or one year from the date the employee separates from the company - whichever is later.

Various government agencies may at any time request access to the I-9 records upon three days' notice, and the employer must supply them. With probable cause, these agencies can get a warrant to enter the premises and review or seize the records even without providing three days' notice.

Q: Are there any special tricks or traps to this process for the employer?

A: Yes. The employer must be very careful in the I-9 process not to violate civil rights or anti-discrimination provisions of existing law. All employees must be treated consistently, and care must be taken not to ask impermissible questions. Again, we strongly recommend that employers carefully review the M-274 Handbook for Employers prior to completing the I-9 process. Further, employers should consult a qualified employment lawyer for advice unique to individual businesses and circumstances.

Q: What are the possible violations and penalties arising out of failure to comply with the I-9 requirements?

A: While we did not wish to ignore this question, it is virtually impossible to give a comprehensive answer here. Again, this is a very complex, multifaceted and fast-changing area and we must limit the scope of our response.

In fact, there are significant penalties involved for violation of anti-discrimination provisions which we will not discuss at all (once again, we urge employers to carefully review the M-274 Handbook for Employers, and to consult a qualified employment lawyer for advice unique to the employer's circumstances).

There are actually several separate violations, both civil and criminal, which arise from the I-9 process. For many of the individual types of violations, each offense (first offense, second offense, etc.) brings a higher level of penalty - either a greater fine or longer possible jail time or both, depending on whether the violation is civil or criminal in nature.

Possible civil violations include:

  • The hiring or continuing employment of an alien unauthorized to work (knowingly hiring an unauthorized alien, or knowingly continuing to employ an unauthorized alien after the employer discovers the alien is unauthorized). There are different penalty levels here for a first offense, second offense, and subsequent offenses - all with ranges of fines which may be assessed. This offense includes use of a subcontracting situation or entity to indirectly obtain the services of an unauthorized alien, even without a direct employment relationship.
  • Failing to comply with the I-9 completion requirements (failing to properly and timely complete an I-9 form or each employee, and/or to keep it on file for the required time period, and/or to make it available to an appropriate government authority upon request). For this violation, there is one penalty range, applied per-employee for whom the I-9 requirement is not met. A violation of this provision may be assessed even if all employees are in fact legally authorized to work.
  • Requiring indemnification from an employee (requiring reimbursement or a bond for penalties incurred by the employer for this or any other of the violations from an employee). Here there is one level of penalty: to pay a fine and to make restitution to the employee from whom indemnification or the bond was required (or to pay this restitution into the U.S. treasury if the employee cannot be located).

Note that proper and timely completion of the I-9 form for each employee provides the employer with a "safe harbor" defense to the violation of knowingly hiring an unauthorized alien. This defense can still be overcome if the government can otherwise prove that the employer has actual knowledge that the alien was unauthorized to work (for instance, a situation may exist where the I-9 is properly completed and documented, but where the government can somehow prove that the employer knew that one of the documents presented was a forgery).

Possible criminal violations include:

  • Engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens (not simply hiring/continuing to employ a single alien as with the civil violation, but doing so repeatedly with multiple aliens). The penalties here include a fine per employee as well as imprisonment.
  • Engaging in false statements, or otherwise misusing documents such as visas, permits or identity documents (a general fraud prohibition, applicable to aliens who use other people's documents, use forged documents or otherwise misuse such documents as well as to employers who assist them in doing so). The penalties for this violation include a fine as well as imprisonment.

Q: Does an employee need to have a Social Security Card or Social Security Number to begin working?

A: Although many people incorrectly believe that a social security card or social security number is required to begin work, this is not technically the case (although as we shall see, it is a requirement to continue working). For purposes of completing the I-9 form, the Social Security Card is just one acceptable List C document which may be used to complete the form - any other List C document may be used in its place along with any List B document, or a List A document may be used in place of any List B or List C document.

Similarly, no provision of tax law (the Internal Revenue Code) requires that an employee have a Social Security Card or Social Security Number at the time that the employee begins employment. There is a requirement, however, that the employee must apply for a Social Security Number within seven days of beginning employment and that the employer provide the number on the employer's information returns when they are filed.

Very often, the employer's requirement of a social security number upon start of employment is a practical one rather than a legal one: payroll software used by the employer or third-party payroll preparers will require a social security number in order to generate a paycheck. Legally, a "phantom" number can be provided for use in generating checks initially, and amended to reflect the accurate number once the Social Security Card is received. The only legal requirement is that the correct number be provided on the employer's information returns.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.