By Linda C. Ashar, J.D.
Faculty Member, School of Business, American Public University
For every new hire, the employer must complete federal Employment Eligibility Verification Form I-9, which verifies that the hiree is eligible to work in the United States under U.S. immigration law. The employee completes Section 1 of the form and provides identification from the form’s specified list for the employer to complete Section 2. These forms are subject to government audit.
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The I-9 currently used is the 10/21/2019 revision. Although it is the employer’s responsibility to initiate the I-9 and maintain it on file, employees must complete Section 1 and provide the employer with their selected original identification documents for examination.
Form I-9 Requires Identification
New employees must complete Part A of the I-9 and provide identification as specified on the form by the Department of Homeland Security (DHS) that proves they are authorized to work in the United States. The I-9 requires employers to inspect the original identification, from one of the following two categories:
- One document from Section 2/List A on the Form (six types of documents are allowed);
- These are photo IDs which DHS has determined are sufficient to establish both identity and eligibility for employment; examples are a current U.S. Passport, or Permanent Resident Card or Alien Registration Receipt Card (Form I-551) OR
- Two documents: One from Section 2/List B and one from Section 2/List C on the I-9 Form.
- The List B document is required to establish identity (nine types of documents are allowed, plus an additional three for persons under 18); examples are a valid driver’s license (with photo) issued by a state; U.S. Military card or record;
- The List C document is required to establish employment authorization (seven types of documents are allowed). Examples on this list include Social Security card and certified U.S. birth on a birth certificate.
The employer verifies inspection of the documents, completes the form and keeps it on file. Anyone who cannot provide the required documentation is not eligible for lawful hire.
Verification of I-9 Documents for Remote Workers
Employers must also verify remote workers’ employee documents just like in-person hires. The DHS remote hire directive states: “When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.”
This means the employer must set up a procedure whereby the remote employee can meet with an authorized person who will examine the employee’s documents and sign a verification of the originals for the employer.
The Form I-9 Timeline
Employers must complete Form I-9 within three days of the employee’s hire date. Most employers start gathering documentation for the Form I-9 in the beginning of the onboarding process in advance of the actual start date..
COVID-19 Has Formed I-9 Hurdles for Remote Workers
COVID-19 has imposed additional stresses on the I-9 process, creating a hiring dilemma. The pandemic has increased the number of remote worker hires. At the same time, it has made in-person document inspection difficult, if not impossible.
People have been unable or reluctant to have a face-to-face meeting to examine ID documents. To address this issue, on March 20, 2020, DHS announced a 60-day suspension of the in-person examination of ID documents for remote workers only. Referred to as a “flexibility” accommodation, the DHS suspension permits employers to inspect and retain remote employee documents by video link, fax, and email. Employers were directed to enter “COVID-19” on Form I-9 as the reason for delaying physical inspection of the documents.
Beginning May 20, 2020, DHS issued successive 30-day extensions of the flexibility accommodation, which remained in effect until September 19, 2020. The DHS website News Releases should be monitored for information about additional renewals of the COVID-19 exception. The directive states that documents must be inspected in person within three days following the expiration of the COVID-19 exception. At that time, the employer must enter the phrase, “documents physically examined” along with the date of inspection in the “additional information” field of Form I-9/Section 2.
Recordkeeping, Form I-9 Corrections and Updates
DHS recognizes that mistakes can occur and provides a long list of common mistakes. An employer should routinely self-audit the Form I-9 record and fix any deficiency as soon as it is realized. Employers can correct only Sections 2 and 3; a problem with Section 1 must be corrected by the employee. If the three-day deadline rule is missed, for example, the form should still be completed. If Form I-9 is missing for an employee, one should be completed to immediately correct the oversight.
If a noncitizen U.S. employee provides an acceptable form of ID for either List A or List C and that ID expires, a reverification of a new ID should be added to Section 3 of the employee’s Form I-9. The recordkeeping system should include a mechanism to flag necessary updates. (Employers should not reverify U.S. citizens or documents from List B.)
If a former employee is rehired within three years of the date that the previous Form I-9 was completed, the employer may either complete a new Form I-9 or Section 3 of the previously completed Form I-9.
I-9s must be kept for the employee’s entire period of employment and after employment:
- for a period of three years from the employee’s date of hire (as recorded on the I-9), if the employee worked for two years or less; or
- for one year following the termination date of employment, if the employee worked longer than two years.
I-9s should not be dispersed in employee personnel files. If there is an audit, they need to be in one place and easy to produce.
Audits disclosing deficiencies in I-9 recordkeeping can lead to penalties and raise suspicions about illegal hiring of undocumented workers. Employer I-9 compliance could be audited by DHS, the U.S. Department of Justice, or the U.S. Department of Labor.
Generally, a notice of audit is sent by certified mail, but it could be initiated by warrant or subpoena. While the major inquiry of any audit will be whether undocumented and/or ineligible workers are illegally employed, substantive and technical violations on completed I-9s can also result in monetary penalties.
The Bottom Line on Form I-9
Employers must ensure the correct version of the Form I-9 is being used and properly completed, with inspection of the employee’s ID documents. Employees have the obligation to provide accurate information and comply with the employer’s procedure to produce valid, current documentation as specified by I-9.
The DHS flexibility accommodation for COVID-19 has eased the in-person requirement of inspection for remote employees, but that relief is temporary. At some point the flexibility allowance will expire and not be renewed, requiring in-person inspection procedure updating of the I-9 within three days.
Employers should have a procedure in place to cover the I-9 part of the hiring process, including a checklist. The completed checklist is the document to keep in the employee’s personnel file.
I-9s should be maintained in their own file system, whether digitally or in hard copy. Periodic self-audits are recommended to avoid problems or surprises in the event of an audit.
A handy reference for more information is the DHS Handbook for Employers M-274, Guidance for Completing Form I-9.
About the Author
Linda C. Ashar is a full-time Associate Professor in the School of Business at American Public University, teaching undergraduate and graduate courses in business, law, and ethics. She obtained her Juris Doctor from the University of Akron School of Law. Her law practice spans more than 30 years, including employment law and litigation on behalf of employers and employees.