The Employment Eligibility Verification requirements came out of the Immigration Reform and Control Act of 1986 (IRCA). Under this law, it is illegal to employ a person who is not legally authorized to work in the U.S. Accordingly, all U.S. employers are required to verify the identity and work authorization status of every newly hired employee. This could be a US citizen, permanent resident, or any person working using a nonimmigrant visa, or employment authorization card. The primary purpose of the I-9 program is to ensure that individuals employed in the U.S. are authorized to work and to reinforce compliance with U.S. immigration laws.
Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. It must be completed by both employees and employers. Employers may also not selectively choose who will and who will not complete I-9 forms because they could face penalties under anti-discrimination laws. Employees must provide acceptable documents that establish their identity and employment eligibility.
An employer is not expected to be a document expert but is held to “reasonableness” standard in determining whether the documents produced by the employee are fraudulent or not.
Individuals hired on or before Nov. 6, 1986, working as casual domestic helper in a private home on a sporadic, irregular, or intermittent basis; volunteers, independent contractors; and individuals providing labor if they are employed by a contractor providing contract services (like employee leasing or temporary agencies) are not required to complete Form I-9. However, if the employer is aware that an independent contractor is not authorized to work in the U.S. then the employer is prohibited from hiring the independent contractor.
For employees who are not U.S. citizens or lawful permanent residents, then the authorization to work has an end date. For these employees, the employer must re-verify their employment eligibility to ensure that their status has been extended.
While the I-9 forms are not actually filed with the USCIS, Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., Department of Homeland Security, ICE, Department of Labor, Office of Special Counsel).
Complying: To comply with the requirement employers can use physical Form I-9 or use the USCIS Employment Verification known as E-Verify. Employers must be enrolled in E-Verify to use this method. It is a free, easy and hassle-free means for determining employment eligibility of new employees and the validity of their social security numbers.
Timeline: The I-9 form must be completed by the employee no later than the first day of employment. The employers must complete the employer’s section in the form within three business days of the employee’s first day of work.
The completed forms must be held by the employers in specific file (advised) and not filed with the USCIS. Employers are required to retain the completed I-9 forms for each employee for three years after the date of hire or one year after the date of termination, whichever is later.
Inspections and Audits: USCIS, as well as the U.S. Immigration and Customs Enforcement (ICE), may conduct inspections and audits of employers’ I-9 forms to ensure compliance with not only employment eligibility verification requirements but also timely execution and filing of the forms.