The U.S. Citizenship and Immigration Services (“USCIS”) issued a new I-9, Employment Eligibility Verification Form on August 1, 2023. Effective November 1, 2023, businesses should now be using this new simplified form for all new and re-hire employees. Instructions for the form can also be found on USCIS’s website. With this new form, we are providing a refresher on what businesses must do in order to remain compliant.
What Is An I-9 Form?
Form I-9 is a government issued document that employers and employees must complete at time of hire. The document provides proof that the employer has verified its employees are authorized to work in the United States. Form I-9 has two sections, Section 1 must be completed by employees, irrespective of residency status (i.e. both U.S. Citizens and noncitizens who have authorization to work in the United States). Section 2 is completed by the employer and serves as verification that the employer verified the documents supplied by the employee.
Who Must Complete A Form I-9?
A completed Form I-9 is required for every employee a business has hired in a remuneration for services arrangement. However, only employees must complete the Form I-9. USCIS does not require the form for volunteers, independent contractors, or certain casual domestic employment arrangements.
When Must The Form I-9 Be Completed?
Employee: Section 1 of the Form I-9 may be completed by the employee on or before the first day of employment and can be included with other new hire documents.
Employer: Section 2 of the Form I-9 must be completed by the employer within three business days after the first day of employment. This means the employer is required to review the work authorization documents provided by the new employee and sign the document no later than three days after the employee’s start date.
Following the termination of employment, employers must complete Section 3 of the Form I-9. The document then must be retained for at least one year from termination, or up to three years from date of hire (whichever is later).
Section 2 of Form I-9 requires employers to review certain documents that establish the employee’s identity and show the employee is authorized to work in the United States. Form I-9 provides a list of documents that are acceptable, and are designated in three different groups. In total the documents must establish the employee’s identity and work authorization (i.e. 1 document from List A, or one document from List B accompanied by a document from List C).
The employer, however, cannot designate which documents an employee must use, it is always the employee’s choice on what documents they furnish, as long as they fulfill the requirements.
The employer is not required to be an expert in inspecting the documents. Employers only need to accept documents that reasonably appear to be genuine and relate to the person presenting them. If a document does not appear to be genuine or relate to the individual, the employer may require alternative documents. USCIS has provided guidance that covers employers’ obligations related to examining documents and what actions an employer may take if an employee fails to furnish acceptable documents.
Supporting documents do not need to be retained.
Where And How Must Form I-9s Be Stored?
Because Form I-9 contains Personal Identifying Information the I-9s should be maintained separately from other personnel files. Employers must also:
- Retain completed Form I-9 on file for each person on their payroll who is required to complete the form;
- Retain and store Form I-9 for three years after the date of hire, or for one year after employment is terminated, whichever is later; and
- Make forms available for inspection if requested by authorized U.S. government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.
Form I-9 Compliance
Although I-9 compliance seems to be a simple task, it is an important part of the hiring process. The Immigration Reform and Control Act of 1986 requires employers to verify the identity and work authorization of employees. USCIS may conduct inspections on compliance, and can enforce both criminal and civil penalties for violations. Fines can range from $252 to $2,507 per form for first time violations, and substantially more for subsequent violations.
With the issuance of this new Form I-9, employers should take the opportunity to review their Form I-9 practice ensuring it is in compliance and reduce the risk of liability if USCIS does conduct an inspection at their business.