I-9 (form)

The Employment Eligibility Verification Form I-9 is a U.S. Citizenship and Immigration Services form. It is used by an employer to verify an employee's identity and to establish that the worker is eligible to accept employment in the United States.

Requirements

The Immigration Reform and Control Act of 1986 (IRCA) required employers to verify that all newly-hired employees present "facially valid" documentation verifying the employee's identity and his or her legal authorization to accept employment in the United States. The I-9 form or more properly the Employment Eligibility Verification Form is provided by the federal government for that purpose. Every employee hired after November 6, 1986 must complete an I-9 form at the time of hire. Employees must complete Section 1 of the form within three days of starting work. The employer is responsible for ensuring that the forms are completed properly, and in a timely manner. The I-9 is not required for unpaid volunteers or for contractors. However, a company could still find itself liable if it contracts work to a company knowing that the contractor employs unauthorized workers.

The employee must present a document, or a combination of documents that establishes both his or her identity, and his or her legal authorization to work in the United States. For more details on the documents that can be presented, see the "Documentation" section below.

If an employee doesn't read and write English, a translator or preparer may complete the form and sign it, in addition to the employee's own signature.

In October 2004, new legislation made it possible to complete the I-9 electronically.

Documentation

A variety of documents are acceptable for I-9 purposes. The employee must supply either:

* One document that establishes both identity and employment eligibility (on List A on the I-9) OR
* One document that establishes identity (on List B), together with another document that establishes employment eligibility (on List C)

Documents that may be used under "List A" of the I-9 form to establish both identity and employment eligibility include:

* A U.S. Passport, either expired or unexpired
* An unexpired foreign passport with an I-551 stamp, or with Form I-94 attached which indicates an unexpired employment authorization
* A Permanent Resident Card (often called a "green card") or Alien Registration Receipt Card with photograph
* An Unexpired Temporary Resident Card
* An Unexpired Employment Authorization Card
* An Unexpired Employment Authorization Document issued by the Dept. of Homeland Security that includes a photograph (Form I-766)

Documents that may be used under "List B" of the I-9 to establish identity include:

* Driver's license or I.D. card issued by a U.S. state or outlying possession of the U.S., provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address.
* Federal or state I.D. card provided it contains a photograph or identifying information such as name, date of birth, gender, height, eye color and address.
* School I.D. with photograph
* Voter's registration card
* U.S. Military card or draft record
* U.S. Coast Guard Merchant Mariner Card
* Native American tribal document
*Driver's license issued by a Canadian government authority

For individuals under the age of 18 only, the following documents may be used to establish identity:

* School record or report card
* Clinic, doctor or hospital record
* Day-care or nursery school record

Employees who supply an item from List B must also supply an item from List C

Documents that may be used under "List C" of the I-9 to establish employment eligibility include:
* A U.S. Social Security card issued by the Social Security Administration (Note: cards that specify "not valid for employment" are not acceptable.)
* A birth certificate issued by the U.S. State Department (Form FS-545 or Form DS-1350) Original or certified copy of a birth certificate from the U.S. or an outlying possession of the U.S., bearing an official seal
* Native American tribal document
* U.S. Citizen I.D. Card (Form I-197)
* An I.D. Card for the use of a Resident Citizen in the United States (Form I-179)
* An unexpired employment authorization card issued by the Dept. of Homeland Security (other than those included on List A)

U.S. citizens who have lost their social security card can apply for a duplicate at the Social Security Administration.

Reverification

Employers must update or reverify certain ID documents at or prior to their expiration date. This does not apply to US Passports, which can be used even if expired, nor to already presented and accepted non-expired Permanent Resident Cards when they reach their expiration date, nor to any List B documents, e.g. state driver's licenses and state ID's. The USCIS website, in the Employer section, Employer Bulletins, lists the limited requirements and allowed instances for reverification.

Retention

Employers must retain a copy of the I-9 for a) three years after the employee is hired or b) one year after their employment is terminated, whichever is LATER. This means retention for a total 4 years for an employee who has ended employment at three years, for example (1 year after termination.) The I-9 must be retained as long as the employee is employed with the company. [cite web |title=Verifying Employee's Eligibility| url=http://payroll.intuit.com/payroll_resources/federal_tax_withholding/index.jsp]

Anti-discrimination provisions

The Immigration Reform and Control Act which introduced the I-9 form also included anti-discrimination provisions.cite web |title="ABCs of Immigration: I-9 Compliance - Avoiding Immigration Bombshells| url=http://www.visalaw.com/07jan1/2jan107.html |accessdate=2007-06-03 |publisher=Siskind Susser Bland ] . Under the Act, most US citizens, permanent residents, temporary residents or asylee/refugee who are legally allowed to work in the US cannot be discriminated against on the basis of national origin or citizenship status. This provision applies to employers of three or more workers and covers both hiring and termination decisions. In addition, an employer must accept any valid document or combination of documents specified in the I-9 form, as long as the documents appear geniune.

For example, an employer could not refuse to hire a candidate because his I-9 revealed that he was a non-citizen (such as a permanent resident or a refugee) rather than a U.S. citizen. For this reason some immigration lawyers advise companies to avoid requiring an I-9 until a candidate is hired rather than risk a lawsuit.. As another example, a company could not insist that an employee provide a passport rather than, say, a driver's license and social security card.

Another anti-discrmination provision requires that employers must enforce I-9 compliance in a uniform manner. For example, an employer must not require some employees to complete an I-9 before being hired, but allow others to complete the form after starting employment.

The [http://www.usdoj.gov/crt/osc/index.html Office of Special Counsel for Immigration-Related Unfair Employment Practices] ("OSC") is a section within the Department of Justice's Civil Rights Division that enforces the anti-discrimination provision of the Immigration and Nationality Act ("INA"). Individuals who believe they have suffered discrimination may call the OSC toll-free Worker Hotline at 1-800-255-7688 [Voice] or 1-800-237-2515 [TTY] . OSC staff members (who have access to language interpreters) can help workers by calling employers and explaining proper verification practices and, when necessary, by providing victims of discrimination with charge forms. Upon receipt of a charge of discrimination, OSC investigations typically take no longer than 7 months. Victims may obtain various types of relief, including job relief and back pay.

OSC also has an extensive outreach program. It provides staff to speak at outreach events throughout the country, and has free informational brochures, posters and tapes for distribution.

TYPES OF DISCRIMINATION

The Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC") investigates the following types of discriminatory conduct under the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b:

Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee by employers with four or more employees. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals. U.S. citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. Exceptions: permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order, or government contract is permissible by law.

National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign." All U.S. citizens, lawful permanent residents, and work authorized individuals are protected from national origin discrimination. The Equal Employment Opportunity Commission has jurisdiction over employers with 15 or more employees.

Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. U.S. citizens and all work authorized individuals are protected from document abuse.

Retaliation. Individuals who file charges with OSC, who cooperate with an OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship or immigration status, or national origin, or who assert their rights under the INA's anti-discrimination provision are protected from retaliation.

"To contact OSC, please call or write:"

Office of Special Counsel for Immigration-Related Unfair Employment Practices
Civil Rights Division
US Department of Justice (NYA 9000)
950 Pennsylvania Avenue, NW
Washington, DC 20530

Worker Hotline: [phone] [Voice] or 1-800-237-2515 [TTY]
Employer Hotline: [phone] [Voice] or 1-800-362-2735 [TTY]
Direct Office Line: 1-202-616-5594 [Voice] or 1-202-616-5525 [TTY]

Penalties

The IRCA includes penalties for I-9 noncompliance. According to the I-9 form, "federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form." An employer who hires an unauthorized worker can be fined between $250 and $5,500 per worker. In addition, such an employer can be barred from federal government contracts for a year. An employee who knowingly accepts fraudulent documentation can also be criminally prosecuted under other immigration laws.

An employer who fails to keep proper records that I-9s are properly filed can be fined $100 per missing item for each form, up to $1000 per form, even if the employee is legally authorized to work in the US.

Employers, translators or preparers who knowingly enter wrong information can be charged with perjury.Fact|date=June 2007

References

External links

* Updated I-9 Forms From [http://www.legalemployer.com/index.php LegalEmployer.com]
* [http://www.legalemployer.com/I9Form.pdf Updated I-9 Form English]
* [http://www.legalemployer.com/I9FormSpanish.pdf Updated I-9 Form Spanish]
* [http://www.legalemployer.com/DHS-FormI9-eSignature.pdf Understanding E-Signature]
* [http://www.legalemployer.com/ice_safeharbor.pdf Safe Harbor Procedure for employers who receive a no match letter]
* [http://www.legalemployer.com/Employee_Handbook.pdf I-9 Handbook for Employers]

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* [http://www.uscis.gov/files/form/I-9.pdf I-9 Employment Eligibility Verification Form (pdf)]

Recent Employee Bulletins by the USCIS explain many questions and concerns that employees have had over the years about the I-9 process, such as the limitation of an employer's ability to discern from the many old ID's, the many various forms of ID, discovery of possibly questionable ID, etc.:

# [http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=0572194d3e88d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=91919c7755cb9010VgnVCM10000045f3d6a1RCRD "About Form I-9, Employment Eligibility Verification"]
# [http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c71596981298d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=91919c7755cb9010VgnVCM10000045f3d6a1RCRD "Employer Information Bulletins"]
# [http://www.uscis.gov/files/article/EIB102.pdf "The I-9 Process in a Nutshell, Employer Information Bulletin 102" (A more thorough form.)]