Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. Form I-9 is made up of three sections.
Form I-9 may be completed as soon as the employer has offered the individual a job and the individual has accepted the offer. Each newly hired employee must complete and sign Section 1 of Form I-9 no later than his or her first day of employment. Each employee hired on or after November 7, 1986, must complete the designated portion of the I-9 Form. Form I-9 requires the employee to attest, under penalty of perjury, that he or she is authorized to work in the United States as a U.S. citizen, lawful permanent resident, or nonimmigrant with a time-limited form of work authorization.
Within three (3) business days of hire, the employee must also submit certain original documents that establish identity and employment authorization to the employer for review. Employers cannot specify which document(s) employees may present from the list of acceptable documents.
Employers or their authorized representative must complete Section 2 of the I-9 Form by examining evidence of identity and employment authorization submitted by the employee within three (3) business days of the employee’s first day of employment. Note that employer can contract with another person or business to verify employees’ identities and employment authorization and to complete Forms I-9 for their employee. However, employer is still responsible for the contractor’s actions and are liable for any violations of the employment eligibility verification requirements.
In case of remotely hired employees, the employer may designate an authorized representative to fill out Forms I-9 on behalf of the company, including personnel officers, agents or notary public. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative fills out Form I-9 on company’s behalf, the company is still liable for any violations in connection with the form or the verification process.
If the employee has provided a document expiration date in the employee’s section of the I-9 Form, the employer also must re-verify the employee’s employment eligibility before that date has passed. The employer must retain the completed I-9 Form for at least three (3) years or one (1) year after employment terminates, whichever is later. This is referred to as the “retention period.”
Employers who do not complete and retain I-9 Forms for every employee hired on or after November 7, 1986, may face civil fines by the U.S. Immigration and Customs Enforcement (ICE) for failing to properly prepare each I-9 Form. The severity of the penalty is determined by: (i) the size of the business; (ii) the employer’s good faith efforts to comply with the law; (iii) the number of unauthorized employees; and (iv) whether the employer has a history of violations. In addition, ICE may impose civil sanctions for each unauthorized foreign national employee. Note that the Employers are liable for both “actual” and “constructive” knowledge that an employee is not authorized to work.