New I-9 Form Announced by USCIS November 7, 2007:
The USCIS announced a new I-9 Form November, 7 2007. Employers may
either get the new form at
www.USCIS.gov website or
CLICK HERE FOR NEW I-9 FORM (PDF). See also the
USCIS PRESS RELEASE (PDF) for further information about the new
The Immigration Reform and Control Act made all U.S. employers
responsible to verify the employment eligibility and identity of all
employees hired to work in the United States after November 6, 1986.
To implement the law, employers are required to complete Employment
Eligibility Verification forms (Form I-9) for all employees,
including U.S. citizens.
FOR WHO MUST EMPLOYERS COMPLETE FORM I-9?
Every U.S. employer must have a Form I-9 in its files for each new
was hired before November 7, 1986, and has been continuously
employed by the same employer.
Form I-9 need
not be completed for those individuals:
domestic services in a private household that are
sporadic, irregular, or intermittent;
services for the employer as an independent contractor (i.e.
carry on independent business, contract to do a piece of work
according to their own means and methods and are subject to
control only as to results for whom the employer
does not set
work hours or provide necessary tools to do the job, or whom the
employer does not have authority to hire and fire); and
services for the employer, under a contract, subcontract, or
exchange entered into after November 6, 1986. (In such cases,
the contractor is the employer for I-9 purposes; for example, a
temporary employment agency.)
CURRENT VERSION OF FORM I-9
The current version of the Form I-9 and the Handbook for Employers
are dated "(Rev. 6/5/07).
CLICK HERE FOR CURRENT VERSION OF FORM I-9 (PDF)
WHAT SHOULD BE DONE WITH FORMS I-9 AFTER THEY ARE COMPLETED?
Unlike tax forms, for example, I-9 forms are not filed with the U.S.
government. The requirement is for employers to maintain I-9 records
in its own files for 3 years after the date of hire or 1 year after
the date the employee's employment is terminated, whichever is
later. This means that Form I-9 need to be retained for all current
employees, as well as terminated employees whose records remain
within the retention period. Form I-9 records may be stored at the
worksite to which they relate or at a company headquarters (or
other) location, but the storage choice must make it possible for
the documents to be transmitted to the worksite within 3 days of an
official request for production of the documents for inspection.
immigration law does not prescribe or proscribe storage of a private
employer’s I-9 records in employee personnel files. As a practical
matter, however, particularly if a large number of employees are
involved, it may be difficult to extract records from individual
personnel files in time to meet a 3-day deadline for production of
I-9 records for official inspection.
The law protects certain individuals from unfair immigration-related
employment practices of a U.S. employer, including refusal to employ
based on a future expiration date of a current employment
authorization document. The U.S. government entity charged with
oversight of the laws protecting against unfair immigration-related
employment practices is the Office of Special Counsel for
Immigration Related Unfair Employment Practices, which is part of
the Civil Rights Division of the U.S. Department of Justice.
AVAILABILITY OF FORMS I-9 IN FOREIGN LANGUAGES
The Form I-9 and most other USCIS forms are published in English
EMPLOYEE’S RESPONSIBILITY REGARDING FORM I-9
A new employee must complete Section 1 of a Form I-9 no later than
close of business on his/her first day of work. The employee’s
signature holds him/her responsible for the accuracy of the
information provided. The employer is responsible for ensuring that
the employee completes Section 1 in full. No documentation from the
employee is required to substantiate Section 1 information provided
by the employee.
EMPLOYER’S RESPONSIBILITY REGARDING FORM I-9
The employer is responsible ensuring completion of the entire form.
No later than close of business on the employee’s third day of
employment services, the employer must complete section 2 of the
Form I-9. The employer must review documentation presented by the
employee and record document information of the form. Proper
documentation establishes both that the employee is authorized to
work in the U.S. and that the employee who presents the employment
authorization document is the person to whom it was issued. The
employer should supply to the employee the official list of
acceptable documents for establishing identity and work eligibility.
The employer may accept any List A document, establishing both
identity and work eligibility, or combination of a List B document
(establishing identity) and List C document (establishing work
eligibility), that the employee chooses from the list to present
(the documentation presented is not required to substantiate
information provided in Section 1). The employer must examine the
document(s) and accept them if they reasonably appear to be genuine
and to relate to the employee who presents them. Requesting more or
different documentation than the minimum necessary to meet this
requirement may constitute an unfair immigration-related employment
practice. If the documentation presented by an employee does not
reasonably appear to be genuine or relate to the employee who
presents them, employers must refuse acceptance and ask for other
documentation from the list of acceptable documents that meets the
requirements. An employer should not continue to employ an employee
who cannot present documentation that meets the requirements.
QUESTIONS ABOUT GENUINENESS OF DOCUMENTS
Employers are not required to be document experts. In reviewing the
genuineness of the documents presented by employees, employers are
held to a reasonableness standard. Since no employer which is not
participating in one of the employment verification pilots has
access to receive confirmation of information contained in a
document presented by an employee to demonstrate employment
eligibility, it may happen that an employer will accept a document
that is not in fact genuine – or is genuine but does not belong to
the person who presented it. Such an employer will not be held
responsible if the document reasonably appeared to be genuine or to
relate to the person presenting it. An employer who receives a
document that appears not to be genuine may request assistance from
the nearest Immigration field office or contact the Office of
DISCOVERING UNAUTHORIZED EMPLOYEES
It occasionally happens that an employer learns that an employee
whose documentation appeared to be in order for Form I-9 purposes is
not actually authorized to work. In such case, the employer should
question the employee and provide another opportunity for review of
proper Form I-9 documentation. If the employee is unable under such
circumstances to provide satisfactory documentation, employment
should be discontinued (alien employees who question the employer’s
determination may be referred to an Immigration field office for
DISCOVERING FALSE DOCUMENTATION
False documentation includes documents that are counterfeit or those
that belong to someone other than the employee who presented them.
It occasionally happens that an employee who initially presented
false documentation to gain employment subsequently obtains proper
work authorization and presents documentation of this work
authorization. In such a case, U.S. immigration law does not require
the employer to terminate the employee’s services. However, an
employer’s personnel policies regarding provision of false
information to the employer may apply. The employer should correct
the relevant information on the Form I-9.
PHOTOCOPIES OF DOCUMENTS
There are two separate and unrelated photocopy issues in the
employment eligibility verification process. First is whether an
employer may accept photocopies of identity or employment
eligibility documents to fulfill I-9 requirements. The answer is
that only original documents (not necessarily the first document
of its kind ever issued to the employee, but an actual document
issued by the issuing authority) are satisfactory, with the single
exception of a certified photocopy of a birth certificate.
Second is whether the employer may or must attach photocopies of
documentation submitted to satisfy Form I-9 requirements to the
employee’s Form I-9. The answer is that this is permissible, but not
required. Where this practice is undertaken by an employer, it must
be consistently applied to every employee, without regard to
citizenship or national origin.
The terms Resident Alien Card,
Permanent Resident Card,
Alien Registration Receipt Card,
and Form I-551 all
refer to documentation issued to an alien who has been granted
permanent residence in the U.S.. Once granted, this status is
permanent. However, the document that an alien carries as proof of
this status may expire. Starting with the “pink” version of the
Resident Alien Card (the “white” version does not bear an expiration
date), and including the new technology Permanent Resident Cards,
these documents are valid for either two years (conditional
residents) or ten years (permanent residents). When these cards
expire, the alien cardholders must obtain new cards. An expired card
cannot be used to satisfy Form I-9 requirements for new employment.
Expiration dates do not affect current employment, since employers
are neither required nor permitted to re-verify the employment
authorization of aliens who have presented one of these cards to
satisfy I-9 requirements (this is true for conditional residents as
well as permanent residents).
Note: Even if
unexpired, “green cards” must appear genuine and establish identity
of the cardholder.
SOCIAL SECURITY CARD ISSUES
The Social Security Administration (SSA) currently issues SSA
numbers and cards to aliens only if they can present documentation
of current employment authorization in the U.S. Aliens such as
lawful permanent residents, refugees, and asylees are issued
unrestricted SSA cards that are undistinguishable from those issued
to U.S. citizens.
Note on restricted SSA and other cards:
SSA “Valid only with INS (or DHS) Authorization” card – issued to
aliens who present proof of temporary work authorization; these
cards do not satisfy the Form I-9 requirements.
SSA “Not Valid for Employment” card – issued to aliens who have a
valid non-work reason for needing a social security number (e.g.,
federal benefits, State public assistance benefits), but are not
authorized to work in the U.S.
Internal Revenue Service (IRS) Individual Taxpayer Identification
Numbers (ITINs) – issued to aliens dealing with tax issues (e.g.,
reporting unearned income such as savings account interest,
investment income, royalties, scholarships, etc.). An Individual
Taxpayer Identification Number card is
Aliens who satisfy I-9 requirements have been known to present a
restricted SSA card for payroll administration purposes (consistent
with advice from SSA and IRS). In cases like this, the employer
needs to encourage the individual to report the change in status to
RETENTION OF FORMS I-9
All of an employer’s current employees (unless exempt) must have
Forms I-9 on file. A retention date can only be determined at the
time an employee is terminated. It is determined by calculating and
comparing two dates. To calculate date A, the employer should add
three years to the hire date. To calculate date B, the employer
should add one year to the termination date. Whichever of the two
dates is later in time is the date until which that employee’s form
I-9 must remain in the employer’s employment eligibility
OFFICIAL INSPECTION OF I-9 RECORDS
Upon request, all Forms I-9 subject to the retention requirement
must be made available in their original form or on microfilm or
microfiche to an authorized official of the Bureau of Immigration
and Customs Enforcement, Department of Labor, and/or the Justice
Department’s Office of Special Counsel for Unfair
Immigration-Related Employment Practices. The official will give
employers at least 3 days advance notice before the inspection.
Original documents (as opposed to photocopies) may be requested.
FORM I-9 REQUIREMENTS OF NEW OWNERS OF EXISTING BUSINESSES
In a case where a new owner of a business is a
successor in interest,
having acquired an existing business, the new employer may keep the
acquired employer’s I-9 records rather than complete new Forms I-9
on employees who were also employees of the acquired employer.
However, since the new employer would be responsible for any errors,
omissions or deficiencies in the acquired records, it may choose to
protect itself by having a new Form I-9 completed for each acquired
non-exempt employee and attached to that employee’s original Form
It is not unusual for a U.S. employer to hire a new employee who
doesn’t physically come to that employer’s offices to complete
paperwork. In such cases, employers may designate agents to carry
out their I-9 responsibilities. Agents may include notaries public,
accountant, attorneys, personnel officers, foremen, etc. An employer
should choose an agent cautiously, since it will be held responsible
for the actions of that agent.
should not carry out I-9 responsibilities by means of documents
faxed by a new employee or through identifying numbers appearing on
acceptable documents. The employer must review original documents.
Likewise, Forms I-9 should not be mailed to a new employee to
complete Section 2 himself or herself.
Some business entities contract with professional employer
organizations (PEOs) to handle the personnel and benefits aspects of
the business. This may include completion and retention of Forms
I-9. Where the business entity and the PEO are "co employers," one
Form I-9 need be completed between the co-employers for each
employee who was simultaneously hired by the co-employers. A
business entity and PEO will be deemed a "co-employer" if, among
other things, an employer/employee relationship is said to exist
between the business entity and PEO on the one hand, and the
individual on the other, even though the employee is only performing
one set of services for both co-employers. Therefore, the authority
to hire or terminate employment would have to be in the hands of
both the business entity and the PEO. Since both entities are
employing the individual, however, both entities remain equally
responsible for meeting the Form I-9 requirements and equally liable
for any failures to meet those requirements. Accordingly, the
employer is fully responsible for errors, omissions, and
deficiencies in the PEO's processing.
USCIS November 7, 2007 Form I-9 Press Release (PDF)
Current Revision of Form I-9 (Rev. 6.5.07) (PDF)