What Is a Form I-9?: Here's What You Need to Know
- Recursos humanos
Lectura de 6 minutos
Last Updated: 05/05/2023
Table of Contents
When hiring new employees, businesses must meet some essential compliance requirements. Paperwork must be completed and retained for each employee, including the Form I-9.
As required by federal law, employers must complete and maintain a copy of a completed Form I-9 for every employee. Employers may also need to supply completed Forms I-9 during inspections conducted by the Department of Homeland Security, the Department of Justice, the Department of Labor, or other government agencies.
What Is a Form I-9?
The U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security, requires the completion of the Form I-9, Employment Eligibility Verification, to establish that an employee is eligible to work in the U.S. In addition to proving employment eligibility, the Form I-9 is used to verify an individual's identity by requiring the individual to provide the employer with acceptable documents as evidence of identity and employment authorization.
The USCIS updates the Form I-9 periodically, so employers should verify that they are using the current version of the form available on the USCIS website.
I-9 vs W-9: Are They the Same?
A Form I-9 and a Form W-9 are not the same document. It's important that employers understand the key differences between these documents:
- Independent contractors must fill out a Form W-9, but a Form I-9 is mandatory only for employees.
- Like a Form W-4 completed by employees, a Form W-9 is needed for tax withholding obligations for independent contractors.
Failure to complete the correct form, to verify employment eligibility may result in unwanted financial penalties.
What Is the Form I-9 Used For?
As noted above, the Form I-9 is used to verify the identity and employment authorization of individuals hired to work in the U.S. Federal law requires employers to only hire individuals who are legally permitted to work in the U.S., including:
- U.S. citizens
- Non-citizen nationals
- Lawful permanent residents
- Aliens authorized to work this country
To comply with these laws, employers must confirm the identity and employment authorization of each person hired. The Form I-9 is a record of this required verification process, which businesses must complete and retain for each employee.
Who Must Complete a Form I-9?
As of November, 1986, all employers in the U.S. are responsible for ensuring that newly hired employees complete a Form I-9, regardless of citizenship status. The process requires participation by both the employee and employer to properly complete the form.
- By signing this form and providing acceptable documentation (as noted on the Form I-9 Lists of Acceptable Documents), an employee confirms his or her identity and that they are authorized to be employed in the U.S. They present government-issued identification to the employer, to prove their identity and eligibility to legally work.
- After viewing and verifying the acceptable documents, employers sign the Form I-9 attesting to the fact that documentation provided appears genuine, and they retain the completed form. Employers are required to accept whatever forms of identification prospective employees present, provided they are on the lists of acceptable documents. Mandating that employees provide certain documents on the list (such as a driver's license and Social Security card), but refusing others that the list classifies as valid, can be considered a discriminatory hiring practice.
The USCIS defines "employer" as all employers including recruiters and fee-based referrers who are agricultural associations, agricultural employers, or farm labor contractors. An "employee" is defined as anyone who performs labor or services in the U.S. for an employer, in return for wages or other remuneration.
Volunteers, unpaid interns, independent contractors, or those engaged in some types of casual domestic employment (such as babysitters) are not required to complete a Form I-9. However, employers should ensure accurate classification of workers to forestall potential violations.
Where To Get a Form I-9
You can download the Form I-9 and instructions from the USCIS website. There you will also find related documents, including instructions on how to download and complete the form, as well as versions of the Form I-9, Form I-9 Supplement and instructions in Spanish.
How Do You Fill Out the Form I-9?
The Form I-9 has three sections:
Section One. This part, completed by the employee, includes personal information, citizenship status, or immigration status. It also requires a signature for preparer and/or translator certification, if applicable.
Newly hired employees must be provided with Form I-9 instructions and asked to complete and sign Section One no later than the first day of employment. (You should not ask an individual who has not accepted a job offer to complete this section.) Once completed, the employee must present documentation that establishes their identity and employment authorization to the employer within three days of their first day of employment as explained in the instructions.
Section Two. This part is completed by the employer or the employer's authorized representative and must be completed within three business days of the employee's first day of employment.
First, review Section One to ensure the employee has filled it out properly. Then, using the List of Acceptable Documents provided by the USCIS, complete the following steps while in the physical presence of the employee:
- Ensure any document presented by the employee is on the List of Acceptable Documents or is an acceptable receipt.
- Physically examine each document to determine if it reasonably appears to be genuine and related to the employee presenting it.
- Enter the document title, issuing authority, numbers, and expiration date, if any, from the original documents the employee presented.
- Sign and date this section. Do not backdate.
Section Three. This part is used for re-verification and rehires. If you rehire an employee within three years from the date that the Form I-9 was previously completed or submitted, you may either use the employee's previously completed Form I-9 and complete Section Three or complete a new Form I-9.
Employers must retain a completed Form I-9 for every active employee.
What Documents Are Needed To Complete the Form
A single document may suffice to establish employee identity and employment eligibility, such as a U.S. passport or permanent resident card. Sometimes, an employee may need to present two documents, such as an original Social Security card (not a copy) and a valid driver's license. It is up to the new employee to choose which document(s) to provide — the Form I-9 Instructions detail which documents are acceptable — but the employer must examine these documents to determine whether they reasonably appear to be genuine and relate to the employee.
If the employee's document(s) do not reasonably appear to be genuine or to relate to the employee, an employer must reject the document(s) and provide the employee with an opportunity to present other documents from the Lists of Acceptable Documents.
Form I-9 Storage and Retention
According to USCIS, employers must obtain a completed Form I-9 for each newly hired employee. The completed form must be retained while the employee works for your company, and for a specified amount of time after they are no longer employed by your business. This requirement applies even when a new hire decides to leave employment soon after beginning there.
Federal regulations mandate Form I-9 retention status. If copies of documentation presented by the employee are made by the employer at the time the Form I-9 was completed, those copies must also be retained under the same retention guidelines. After employment ends, the employer must retain the employees completed Form I-9 (and copies of documentation if applicable) for either 3 years after the date of hire, or one year after the date employment ended, whichever is later. Guidance can be found on the USCIS website.
Completed Forms I-9 may be retained in paper or electronic format. Employers are encouraged to review the Department of Homeland Security storage regulations.
What if an Employee Doesn't Fill Out a Form I-9?
Employers may be subject to potentially severe consequences for failing to obtain and retain completed Forms I-9 from new hires. U.S. Immigration and Customs Enforcement can request the Form I-9 of each current employee as part of its Notice of Inspection (NOI) and can also ask for the Form I-9 of a terminated employee, within the retention period. The process, initiated by serving an employer with a NOI, requires providing the requested Form I-9 document in as few as three business days. Failure to do so, and even minor paperwork mistakes, can result in penalties.
In the case of an audit, in addition to the Form I-9, an employer may be asked to provide supporting documentation that may include a copy of the payroll, a list of current employees, articles of incorporation, and business licenses.
Substantive and uncorrected technical violations associated with Form I-9 compliance can range from a minimum of $230 to as much as $1,948 per form for a first offense. Penalties increase with subsequent offenses. Other monetary penalties are steeper, including for "knowingly hiring and continuing to employ" violations.
Employers should adhere to the requirements for use, completion, and retention related to Forms I-9 to mitigate potential fines, penalties, forfeitures, and debarment of federal contracts.
Self-Audits for Form I-9 Compliance
A thorough review of your Form I-9 procedures and performing a self-audit of completed Form I-9s can help employers avoid potentially costly errors in the future. If a mistake is found during your self-audit, the USCIS provides guidance on correcting forms.
According to USCIS, the most common errors include the following:
- Missing employee name or identification information
- Employee failure to sign and date form
- Employer failure to specify identification documents reviewed
- Missing employer information or signature
When an error is discovered in a current employee’s completed Form I-9 Section One, the employer should request that the employee make corrections. Errors in Sections Two or Three should be corrected by the employer. Corrections can be made by drawing a line through the incorrect information. Then the correction should be made, along with an initial and date. If there are more errors, the applicable section of the form may be amended and attached to the original form. A note should be included in the file regarding the reason you made changes to an existing Form I-9 or completed a new Form I-9. Employers can visit the USCIS website for additional guidance.
What's New: Recent Updates and Changes to the Form I-9
Some changes have been made to the Form I-9 in recent years:
Penalties for noncompliance increase each year. Fines for significant and/or inaccurate information range from $252 to $2,507 for a first offense, and $1,161 to $2,322 for ongoing offenses. Penalties for the recruitment, referral, and hiring of unauthorized individuals have also gone up.
The Department of Homeland Security's I-9 Inspection Process flowchart has also been updated, with new information about Notices of Suspect Documents and Notices of Discrepancies.
Although the current Form I-9 expired in 2022, USCIS has directed employers to continue to use the most recent form (dated 10/21/2019). An updated Form I-9 is expected to be released sometime later this year.
Form I-9 Compliance Is a Critical Part of Successful Onboarding
Ensuring a completed Form I-9 should be a mandatory step when employers bring new hires on board. To help you ensure that you're meeting this and other regulatory requirements during the onboarding process, an HR consultant can review your current hiring procedures and offer support as needed.
For more information, consult the USCIS website to download a copy of an Form I-9, instructions and follow updates as they happen. Should you need assistance with Form I-9 compliance, get help from an HR professional.