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Form I-9 & Employment Eligibility FAQs for Small Business Owners

This article was last edited on 8/24/2020. For updated information on Form I-9: Employment Eligibility Verification, visit https://www.uscis.gov/i-9

As an employer, you’re required to confirm that your team members are legally allowed to work in the U.S. using Form I-9: Employment Eligibility Verification. This is necessary due to the Immigration Reform and Control Act (IRCA) of 1986.

The IRCA also prohibits employers from

  • knowingly hiring someone who’s not authorized to work in the U.S.
  • hiring someone without verifying their identification and work authorization
  • continuing to employ someone if you know or should reasonably know that they’re not authorized to work in the U.S.
  • knowingly forging, counterfeiting, altering, or falsifying any documentation to satisfy an immigration-related requirement
  • knowingly using, accepting, or receiving any false document to satisfy an immigration-related requirement
  • discriminating against someone based on national origin or citizenship status in either hiring or firing decisions
  • intentionally requiring an employee to use specific documentation for I-9 purposes
  • intentionally requiring someone to present more or different documents than the minimum requirements
  • intentionally refusing to honor documentation that reasonably appears to be genuine

This article will help you understand more about Form I-9 and verifying your staff’s employment eligibility.

Who has to fill out Form I-9?

Every new employee will need to complete Form I-9 within three days of their first day of work. You do not have to ask independent contractors to complete the form.

After your new team member completes Section 1 and submits original or certified copies of their identification documents, you’ll review the documentation (with the worker physically present) and complete Section 2.

If I rehire an employee, do they have to complete a new form?

Not necessarily. If you rehire someone within three years of when they originally completed Form I-9, you can either ask them to complete a new form or complete Section 3.

If the employee fills out a new form, you’ll store it with the previously completed form. If you choose to use the original form, make sure the previously presented documentation is still valid and record the rehire date in Section 3.

What documentation is acceptable?

Your new employees must give you documents that establish both their identity and their work eligibility. They can do this by

  • presenting one document from List A that establishes both identity and work eligibility
  • presenting one document from List B to establish identity AND one from List C to establish work eligibility

It’s important to note that you cannot require workers to use specific documents.

Can I make copies of my employees’ documents?

Yes. Although it’s not required, copying documents is common to help prove that you’re complying with requirements. If you choose to copy documentation, make copies of everyone’s documents to avoid discrimination.

Do I need to reverify an employee’s eligibility information?

Sometimes. If an employee’s work authorization has an expiration date, reverify their info before the document expires. To reverify someone’s info, examine the new authorization documentation and complete Section 3. You do not need to reverify someone’s identification document, U.S. passports (even if expired), alien registration, or permanent resident cards.

What do I do if there’s an error on the form?

Mistakes happen, so you may want to audit your company’s I-9 forms regularly.

If you find any errors or omissions in Section 1, ask the employee to

  • draw a line through the incorrect info
  • enter the correct or omitted information
  • initial and date the correction

If you find a mistake or omission in Section 2 or 3,

  • draw a line through the incorrect info
  • enter the correct or omitted information
  • initial and date the correction
  • attach a signed and dated explanation of the corrections

For additional information about auditing and correcting Form I-9, visit the U.S. Citizenship and Immigration Services website.

Do I file Form I-9?

No. Although you don’t have to file the form, you’re required to keep it for at least three years after the employee’s hire date or one year after they’ve left your company, whichever is later.

Read also: 3 Employee Files Every Small Business Should Keep

You also must make the form available for inspection if requested by any of the following government agencies:

  • Department of Homeland Security (DHS)
  • Immigration and Customs Enforcement (ICE)
  • Immigrant and Employee Rights Section (IER)
  • Department Justice (DOJ)
  • Department of Labor (DOL)

Because you may need to produce forms for inspection, it’s recommended that you store them and the related documents in a separate file from other personnel info.

Do remote workers need to complete Form I-9?

Yes. If you regularly employ remote staff members, you may designate an authorized representative (including a notary public) to complete Section 2 of the form and documents with the employee physically present. Learn more about completing Form I-9 for remote hires.

Due to COVID-19, the physical presence requirement is temporarily waived for companies currently operating remotely. Right now, you can inspect documentation remotely, using video, fax, email, etc. Then, write “COVID-19” as the reason for a delay in physical inspection in the “Additional Information” box in Section 2. Once normal operations resume, you must verify the documents in person within three days. After you’ve physically inspected the documents, add “documents physically examined” with the date to the “Additional Information” box.

For additional information about flexibility in requirements due to COVID-19, visit the ICE website.

What is E-Verify?

E-Verify is a free-to-use, online system used to verify worker eligibility and supplement the I-9. It allows employers to electronically verify a newly hired employee’s work eligibility to comply with immigration laws. If you choose to use E-Verify, you’ll enter the information from your new hire’s Form I-9 to create a case and will usually learn in seconds whether the employee is authorized to work in the U.S.

Do I have to use E-Verify?

Maybe. On a federal level, most employers are not required to use E-Verify, but some states require employers to use it. If you’re not sure whether you have to use E-Verify, contact your state.