Last Updated on December 3, 2022 by Anda Malescu
The complete guide to Form I-9 and E-verify compliance for US employers covers the following topics.
Overview:
- Requirements
- Forms
- Employer Retention and Storage Policy
- Acceptable Documents
1. Requirements
As the opportunity of employment in the United States attracts people from around the world to come and work illegally, U.S. employers are required by law to hire only individuals who are legally authorized to work, including U.S. citizens, noncitizen nationals, lawful permanent residents (Green Card holders) and aliens authorized to work. Failure to comply with the law results in sanctions for the U.S. employer.
All U.S. employers who recruit, refer for a fee or hire an individual for employment in the United States, including sole proprietorships, corporations, limited liability companies or partnerships, must verify the identity of new employees and their authorization to work in the United States, on or before the first day the new employees start to work by properly completing Form I-9, Employment Eligibility Verification. This also applies to new employees hired in the Commonwealth of the Northern Mariana Islands (CNMI) on or after Nov. 28, 2009.
In addition, within 3 days of the first day of work, the new employee must present documentation to show that he or she is eligible to work in the United States. It is also highly recommended for employers to participate in E-verify, a companion to Form I-9, and confirm employment eligibility via E-verify.
In other words, if you are hiring a new employee, you must confirm your employee’s identity and verify that he or she is authorized to work in the United States and properly complete Form I-9 and retain and store it with the supporting documents for the statutory period discussed below and after, confirm his or her employment authorization via E-verify.
In addition, U.S. employers also need to confirm the employment eligibility in E-verify of new employees working under a federal contract that includes the Federal Acquisition Regulation (FAR) E-verify clause.
However, for independent contractors and self-employed individuals, there is generally no requirement to complete Form I-9 and use E-verify. Simply put, employers are not required to fill in Form I-9 and confirm identity and employment eligibility with E-verify for their independent contractors, except in certain limited situations involving federal contracts where Form I-9 and E-verify are required. Similarly, self-employed individuals are generally not required to fill in Form I-9 on themselves and as a result, they are not required to use E-verify.
To summarize, for each employee they hire, US employers must do the following in order to comply with the law:
- Verify and confirm the identity and employment authorization for each person they hire;
- Properly complete Form I-9, Employment Eligibility Verification for each employee and retain and store it for the required time period under the law; and
- Do not discriminate against individuals on the basis of national origin or citizenship.
2. Forms
Form I-9 is administered by U.S. Citizenship and Immigration Services (USCIS) and is available in English and Spanish. Employers in the United States and its territories can use the Spanish version of Form I-9 as a translation for employees that speak primarily Spanish, but the employees and employers must still complete, retain and store the English version. However, employers in Puerto Rico can use both the English and Spanish version of Form I-9 to comply with the law.
You can download Form I-9 and instructions to the form by clicking here. Do not submit or mail Form I-9 with USCIS or the U.S. Immigrations and Customs Enforcement (ICE)!
After properly completing Form I-9 for the new employee, you must confirm the work authorization by creating a case in E-verify. In fact, all employers who participate in E-Verify must still complete Form I-9 for each new employee hired in the United States.
E-verify, which is the electronic employment eligibility verification program, is a companion to Form I-9 and just like with the Form I-9, it is administered by USCIS. E-Verify is free and is available to participants in all 50 states, as well as the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
You can create an E-verify account by clicking here.
All employers must follow certain procedures when using E-verify including:
- Use E-verify for all new employees, U.S. citizens and noncitizens, and do not use the system selectively.
- Do not use E-verify to prescreen job applicants, check employees hired before the employer started to participate in E-verify or to reverify employees with temporary employment authorization.
- Do not terminate or take other unfavorable action against an employee based on a Tentative Nonconfirmation action (TNC).
3. Employer Retention & Storage Policy
U.S. employers must internally retain and store Forms I-9 for 3 years after the date of hire, or for 1 year after employment is terminated, whichever is later, together with copies of any documents presented by the employees to confirm identity and authorization to work in the United States.
There are no requirements on how employers should retain and store Form I-9 and supporting documents provided by the employees. However, when deciding the storage and retention policy for their business, all employers should keep in mind that they are collecting personal information about the employees and should work to protect the confidentiality and privacy of such information in a manner that fits their business needs and the requirement to make Form I-9 and supporting documents available for inspection.
There is flexibility on how employers can retain and store Form I-9 and documents, including on-site or at an off-site storage facility, in a single format or combination of formats such as on paper, in electronic format or on microfilm or microfiche.
Employers who choose to use electronic systems or microfilm or microfiche to retain and store Form I-9 alongside a paper system or in lieu of a paper system must make sure to have safety controls to ensure the integrity, accuracy and reliability of the forms and systems.
If requested by authorized U.S. government officials from the Department of Homeland Security, Department of Labor, or Department of Justice, employers must make Form I-9 available for inspection within 3 business days from the date the forms were requested.
4. Acceptable Documents
The following are acceptable documents for verifying an employee’s authorization to work in the United States and identity when unexpired:
- US passport or US passport card
- Form I-551, Permanent Resident Card or Alien Registration Receipt Card (Green Card)
- Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
- Form I-765, Employment Authorization Document (EAD) that contains a photograph. However, in certain circumstances, an EAD past its “Card Expires” date qualifies as an unexpired EAD.
- For nonimmigrant aliens authorized to work for a specific employer incident to status, a foreign passport with Form I-94 bearing the same name as the passport and an endorsement of their nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
- Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI
There are other acceptable documents that an employer can use to verity identify and work authorization separately. However, the list above provides documents that can be used to prove both identity and authorization to work in the United States at the same time.
Malescu Law can assist
Our business and immigration lawyers in Miami, Florida can assist US employers with preparing, maintaining and advising on Form I-9 compliance and E-verify. Contact us or book a consultation.
Malescu Law P.A. – Immigration Lawyers
