Employee Management

Get to know the basics of Form I-9

The ins and outs of completing Form I-9.

By HR360

As an employer, one of your most important responsibilities when hiring a new employee is to properly complete Form I-9. Below are five basic points to remember:

1. All employers need to use Form I-9

Federal law requires employers to hire only individuals who may legally work in the United States — either U.S. citizens or foreign citizens who have the necessary authorization. As a general rule, all U.S. employers must verify the employment eligibility and identity of each employee hired to work in the U.S. by completing Form I-9 for every employee, including U.S. citizens. Employers are not required to complete Forms I-9 for independent contractors. However, it is against the law to contract for the labor of an individual knowing that he or she is not authorized to work in the U.S.

2. Newly hired employees must complete Form I-9 no later than the first day of work

Employers may not begin the Form I-9 process until an individual accepts an offer of employment. Newly hired employees must complete and sign Section 1 of Form I-9 no later than the first day of work for pay. The employee must present to the employer unexpired, original documentation that shows his or her identity and employment authorization within three business days of the date employment begins.

3. Employers must complete Form I-9 within three business days of employee's first day

An employer must use the documents presented by the employee to complete and sign Section 2 of Form I-9 within three business days of the first day of work for pay (for example, if an employee begins work for pay on Monday, an employer must complete Section 2 by Thursday of that week). Among other things, employers are required to physically examine each document to determine if it reasonably appears on its face to be genuine and relate to the employee presenting it. If a document does not satisfy these criteria, the employer should reject it and allow the employee to present other acceptable documentation.

4. Form I-9 must be kept for a certain amount of time after an employee leaves

Employers do not need to submit Forms I-9 to the federal government, but must keep an employee's completed Form I-9 for as long as the individual works for the employer. Once the individual's employment has terminated, the employer must keep the Form I-9 until the later of:

  • Three years after the date of hire, or

  • One year after the date employment is terminated.

The forms may be stored on paper or electronically; however, an employer must be able to present Forms I-9 to government officials for inspection within three business days of a request. Keep in mind that Forms I-9 collect personal information about employees, so adequate safeguards should be in place to protect that information, regardless of how it is stored.

5. Not completing Form I-9 may lead to penalties

Hiring employees without complying with the employment eligibility verification requirements is a violation of the law. Employers that fail to properly complete or retain Forms I-9 could be subject to civil fines. Criminal penalties may apply in the event an employer engages in a pattern or practice of knowingly hiring or continuing to employ individuals who are not authorized to work in the U.S. In addition, keep in mind that employers are prohibited from discriminating against individuals based on their national origin, citizenship or immigration status. Unlawful discrimination may also expose an employer to penalties.

A note about E-Verify

E-Verify is a free Internet-based system that allows an employer, using information reported on an employee's Form I-9, to determine the eligibility of that employee to work in the U.S. While participation in E-Verify is voluntary for most businesses, some companies may be required by state or federal law to use E-Verify. For example, the program is mandatory for employers with certain federal contracts or subcontracts. Note that E-Verify does not replace the legal requirement to complete and retain Form I-9, and employers participating in E-Verify are required to post special notices in the workplace.

More information on completing Form I-9

I-9 Central is an online resource dedicated to Form I-9, which provides information about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. It also includes frequently asked questions and answers about the Form I-9 process.

HR360 is the award-winning online HR library featuring easy-to-understand guidance on federal and state labor laws and Health Care Reform, along with interactive HR tools and hundreds of forms and posters. HR360 also features step-by-step guidance in key HR areas such as hiring, performance reviews, disciplining, and termination. Reviewed and maintained by a team of attorneys, HR360 helps employers nationwide successfully manage their employees while complying with changing employment laws.

The content herein is provided for general information purposes only, and does not constitute legal, tax, or other advice or opinions on any matters. This information has been taken from sources which we believe to be reliable, but there is no guarantee as to its accuracy.

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