Form I-9: How To Complete Employment Eligibility Verification
Immigration law is constantly evolving, making it difficult for employers to keep up with the latest rules and regulations. Form I-9, also known as the Employment Eligibility Verification form, is a United States Citizenship and Immigration Services (USCIS) form that verifies the identity and employment authorization of any and all individuals that are employed in the U.S.
Employers – or their authorized representatives – must complete the form for every worker they hire, whether they are citizens or non-citizens.
In an effort to control and restrict illegal immigration, Congress passed the Immigration Reform and Control Act, or IRCA, in 1986. Employment eligibility verification provisions of IRCA are found under Section 274A of the Immigration and Nationality Act (INA).
Discrimination is prohibited on the basis of an individuals’ actual or perceived citizenship, immigration status, or national origin during the recruiting, hiring, firing, form I-9 and E-Verify processes. This is highlighted in detail on the USCIS website; proper non-discrimination policies must be implemented to ensure all employees understand the rules.
The anti-discrimination provisions of the INA are enforced by the Department of Justice Civil Rights Division: Immigrant and Employee Rights Section (IER). They prohibit four types of unlawful conduct –
- Citizenship or immigration status discrimination
- National origin discrimination
- Unfair documentary practices
- Retaliation or intimidation
I-9 Verification Requirements
Both employees and employers (or the authorized representatives of the employer) must complete the form I-9. Federal law also prohibits individuals (and/or businesses) from contracting with an independent contractor if they are aware that the contractor in question is not authorized to work in the U.S.
Form I-9 breakdown
The I-9 form consists of three sections:
- Section one is for employee information and attestation, and should be completed by the employee.
- The second section is for employer (or authorized representative) review and verification, and filled by them accordingly.
- The third section is for reverification and rehires, and should be filled out by employers for employees who are either rehired or whose employment authorization needs to be reverified.
Employees fill out the first section of the form, entering information about their identity and employment eligibility, and providing all required supporting documentation no later than the first day of their employment. The employer completes section two no later than the third business day of employment.
The employees attest to their employment authorization and must produce acceptable documentation to back up this claim. These documents must be examined by the employer, deemed appropriate and authentic, and recorded onto the Form I-9. This information and Form I-9 should be retained by the employer for a designated period of time, and produced for authorized government officers as required.
Exceptions to the Employment Eligibility Verification
Employers must complete and retain Forms I-9 for every employee they hire in the U.S. with certain exemptions. According to the USCIS, these are:
- Individuals not physically working in the U.S.
- Individuals hired on or before November 6, 1986, who are continuing in their employment and have a reasonable expectation of employment
- Individuals hired for employment in the Commonwealth of the Northern Mariana Islands on or before November 27, 2009
- Individuals employed for domestic work in a private home on an irregular basis
- Independent contractors or individuals providing labor if they are employed by a contractor providing contractual services
When must Form I-9 be completed by?
As fewer people are manually filling out the Form I-9, let’s take a look at E-Verify deadlines. Completing the I-9 form and submitting it to E-Verify in a timely manner is of the utmost importance. Failure to complete and verify according to law can result in substantial penalties and fines for employers.
Completing and submitting the Form I-9
- The earliest a new hire may be asked to complete Section 1 of the I-9 form is after an offer of employment is accepted. The I-9 form cannot be used as part of the applicant screening process
- The new hire must complete Section 1 by the end of the first day of paid work
- The latest that an employer may complete Section 2 of the form is the end of the third day after the first day of employment
- Employers should encourage new hires to present identification documents as soon after completing Section 1 as possible. They must allow new hires up to three days after beginning paid work to present acceptable identification documents (these are listed on the I-9 form instructions). If the new hire fails to present these by the end of this period, they may be terminated for failing to complete the I-9 form.
A new hire may be submitted for verification:
- At earliest, after the applicant has accepted the position, and the new hire and employer have completed both sections of Form I-9. The verification can be completed before the employee begins work for pay
- At latest, three days after the new hire’s first day of work for pay
*The exception to these dates are employees that will work for fewer than three days.
How to comply during the coronavirus pandemic
COVID-19 has disrupted our lives in a number of ways in most possible ways, including bringing changes to Form I-9.
Verification for Remote Workers
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) introduced a flexibility in I-9 compliance on March 19, 2020. Originally set to expire on December 31, 2020, this temporary guidance allows DHS to “exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act.”
Due to extended precautionary measures caused by the pandemic, DHS has extended this policy until January 31 March 31, 2021. However, this only applies to workplaces that are operating remotely and the I-9 regulations are always changing.
Common I-9 mistakes
Forms I-9 are quite a bit of paperwork. Mistakes are common and problems may arise for many reasons, such as untrained or poorly trained staff supervision, or failure to conduct internal audits and catch mistakes or inadequacy. Some of the most common challenges include:
- Incomplete or incorrect form sections (such as missing signatures or checkboxes, or false information)
- Failure to provide or verify supporting documentation
- Missed filing deadlines
It’s easy to see why this can be difficult. To enforce compliance, employers must keep track of over 1200 Form I-9 rules. In 2018, between 60-80% of paper Form I-9s went missing, were incomplete, or contained mistakes and errors. Companies found to have I-9 and immigration problems can quickly find themselves a spotlight in the 24-hour media cycle, creating risk to your brand and reputation.
Electronic I-9 solutions
The best way to make sure your employment eligibility forms are being filled out accurately and on-time is to consider electronic solutions.
Taking your I-9 digital can provide greater efficiency, with secure paper form scanning and manual key entry services. Converting your archived paper I-9s into compliant and easily manageable electronic forms can lower the risk of paper-driven error while maintaining a paper trail for future audits. COVID-19 proves that paper paperwork is rapidly becoming outdated, yet many I-9s are still being processed this way. 76% of paper I-9 forms have at least one fineable error; this is 4.1 times higher than electronic 1-9s with verification. Without a central repository, forms are easily lost, posing a much higher audit risk.
Tracker I-9 Compliance is the industry’s most advanced I-9 compliance offering. From paper form digitization to ongoing electronic I-9 management, it’s a user-friendly compliance solution that was created by top-ranked immigration experts. To date, the end-to-end compliance had maintained a perfect 20+ year track record of zero client fines. It addresses every challenge outlined above.