When must an I-9 be completed?

Every time you hire any person to perform labor for services in return for wages or remuneration an I-9 must be completed.

What is the difference between the revised Form I-9 and the old version?

A: Five documents have been removed from List A of the List of Acceptable Documents:

• Certificate of U.S. Citizenship (Form N-560 or N-561)
• Certificate of Naturalization (Form N-550 or N-570)
• Alien Registration Receipt Card (I-151)
• Unexpired Reentry Permit (Form I-327)
• Unexpired Refugee Travel Document (Form I-571)
  

One document was added to List A of the List of Acceptable Documents:

• Unexpired Employment Authorization Document (I-766)

All the Employment Authorization Documents with photographs in circulation are now included as one item on List A:

• I-688, I-688A, I-688B, I-766

Instructions regarding Section 1 of Form I-9 now indicate that the employee is not obliged to provide the Social Security Number in Section 1 of Form I-9, unless s/he is employed by an employer who participates in E-Verify. The section on Photocopying and Retaining Form I-9 now includes information about electronically signing and retaining I-9 forms.

May I continue to use earlier versions of Form I-9?

NO. Employers must use the 2007 edition of Form I-9, approved on June 5, 2007.

Can I accept documents that used to be on the Form I-9 but aren't now?

NO. Employers may only accept documents listed on the List of Acceptable Documents on Form I-9. When re-verifying employees, employers should ensure that they use the new Form I-9 with its updated list of acceptable documents.

Are there any changes in the way the new Form I-9 is completed?

NO. The updated form should be completed exactly the same way as the old one was. The only difference is the types of documents that employers may accept in Section 2.

When does the employee complete Section 1?

Section 1 must be completed, signed and dated by the employee on or before the day the individual begins work. The United States Citizenship and Immigration Services (USCIS) defines this date as the actual commencement of employment of an employee for wages or other compensation.

What if a new employee leaves the SSN field blank? Can I, or should I require them to provide a SSN?

NO. The SSN field on the I-9 form is not required

If someone accepts a job with a UTHSC-H department but will not start work immediately, can the I-9 be completed when the employee accepts the job?

YES. The law requires that the Form I-9 be completed when the person begins working. However, the form may be completed earlier, as long as it is completed at the same point in the employment process for all employees.

Can someone other than the employee complete Section 1 of the I-9 for an employee?

YES. A third party may help an employee who needs assistance in completing Section 1 of the I-9. However, the "Preparer/Translator Certification" block must be completed and signed by the person who assists. The employee must still sign and date the certification block in Section 1 on or before the first day of work.

When does the employer representative complete Section 2?

Section 2 must be completed, signed and dated no later than 3 business days after the first day of employment, which is the first day on the job.

Can I accept a faxed or photo copy of a document?

NO, you must review the original document.

Can I accept an out-of-state driver’s license?

YES, you can accept an out-of-state driver’s license.

If the employee presents a Permanent Resident Card, do I need a copy of the Driver’s License and SS card?

For I-9 purposes, the employee may choose the documents that he/she presents you. The Permanent Resident Card is a valid List A employment eligibility document and does not require any other documentation.

What do I do if the new employee cannot present a Social Security card?

The employee may choose another document from List C. Or, the employee must present a receipt for the SS card (showing the individual has applied for a replacement card that may have been lost, stolen, or destroyed). The employee then has 90 days, from hire date, to present the replacement SS card.

The name on the SS card is different from the name the employee listed on the form. What do I do?

Your objective is to establish identity; ask the employee why there is a difference and review the second document. Does the name on the second document match the name on the form or the name on the SS card? Was the employee recently married? If you can answer these questions to your satisfaction, you can accept the SS card. Suggest that the employee update their SS record. Remember, the employee’s “payroll” name will be the name on the SS card.

The SS card says “Not Valid Without DHS Authorization.” What does this mean?

This means that the employee must have DHS authorization to work and you cannot accept the SS card as an I-9 document. The employee must present a valid List A document such as a foreign passport and supporting documentation.

I noticed on the Form I-9 that under list A there are 2 spaces for document numbers and expiration dates. Does this mean I have to see 2 list A documents?

NO. One of the documents found in List A is an unexpired foreign passport with an attached INS Form I-94. The Form I-9 provides space for you to record the document number and expiration date for both the passport and the INS Form I-94.

Should the employer view and record documents for Section 2 in all three documents, Lists A, B, and C?

NO. Never fill out all three columns. The employer should view and record in Section 2 either one document from List A OR one document from List B and one document from List C.

Can the employer tell the employee which documents to present or which documents the employer prefers to see?

NO.

Why is a driver's license from Canada acceptable as a List B document and not a driver's license from Mexico?

The United States-Canada Free-Trade Agreement and other reciprocal agreements between these two countries form the basis for accepting a driver's license from Canada as a List B identity document. No such reciprocal agreements currently exist between the United States and Mexico that would allow or permit the use of a driver's license from Mexico as a List B identity document.

May I accept an expired document?

You may accept an expired United States Passport. You may also accept an expired document from List B to establish identity. However, the document must reasonably appear on its face to be genuine and to relate to the person presenting it. You cannot accept any other expired documents.

How can I tell if a USCIS-issued document has expired?

Some USCIS-issued documents, such as previous versions of the Alien Registration Receipt Card (I-151 and I-551), do not have expiration dates and are valid indefinitely. However, the 1989 revised version of the Alien Registration Receipt Card (I-551), which is rose-colored with computer readable data on the back, features a 2-year or 10-year expiration date. Other USCIS-issued documents such as the Temporary Resident Card (I-688) and the Employment Authorization Card (I-688A or I-688B) also have expiration dates. These dates can be found either on the face of the document or on a sticker attached to the back of the document.

Some people are presenting me with printouts from the Social Security Administration with their name, Social Security Number, date of birth, and their parents' names. May I accept such printouts in place of a Social Security Card as evidence of employment eligibility?

NO. Only a person's official Social Security Card is acceptable.

What should I do if persons present Social Security Cards marked "NOT VALID FOR EMPLOYMENT," but state they are now authorized to work?

You should ask them to provide another document to establish their employment eligibility. (Since Social Security Cards with such qualifiers do not establish this.)

Some people are presenting me with Social Security Cards that have been laminated. May I accept such cards as evidence of employment eligibility?

NO. You may not accept a laminated Social Security Card as evidence of employment eligibility if the card states on the back "not valid if laminated." Lamination of such cards renders them invalid. Metal or plastic reproductions of Social Security Cards are not acceptable either.

When is I-9 Updating and Re-verification required?

When an employee's work authorization expires you must re-verify his or her employment eligibility. An employee’s I-9 must be updated when they change their name as well.

Is it necessary to update or re-verify an I-9 based on the following documents?
- Expired U.S. Passport
- Expired green card (I-551)
- Expired List B document

NO. An expired U.S. Passport, expired green card (I-551), or expired List B document does not constitute the need to update/reverify the I-9.

Do I need to complete a new I-9 when an employee transfers or has been employed by another UT System institution?

YES, a new I-9 must be completed.

If an employee has been terminated and is later rehired, does a new I-9 need to be completed?

YES. Any employee who has been terminated and removed from payroll needs to complete a new I-9 when rehired.

In the event of a United States Citizenship and Immigration Services or Department of Labor audit, is the University subject to any penalties for failing to comply with Form I-9 requirements?

Employers/Departments who fail to properly complete, retain, and/or make available for inspection Forms I-9 as required by law may face civil money penalties of not less than $100 and not more than $1,000 for each employee for whom the Form I-9 was not properly completed, retained, and/or made available.

Must an employer keep on file a Form I-9 for every current employee?

YES. The Form I-9 was developed for the purpose of verifying that individuals are legally eligible to work in the United States. Employers are required to complete a Form I-9 for every individual hired after November 6, 1986.

How long must I keep I-9 Forms on file?

An employer must retain the original Form I-9 for each employee either for three (3) years after the date of hire, or one (1) year after employment is terminated, whichever is later. All current employees hired after November 6, 1986 must have I-9 Forms on file with for the full term of their employment, plus the applicable retention period.

Should I make photocopies of documents the employee presents?

Generally, it is not recommended that you make photocopies of Form I-9 supporting documents. An employer may do so if they so choose. If such a copy is made, it must be retained with the Form I-9. The copying of any such supporting documentation and retention of the copies does not relieve the employer from the requirement to fully complete Section 2 of the Form I-9. If employers choose to keep copies of Form I-9 documentation, then such retention must apply to all employees, and the copies should be attached to the related I-9 Forms. If an employer implements a policy of copying I-9 related employee documents, it must ensure that it follows this practice for all employees and not solely for individuals of certain national origin or citizenship status. To do so may constitute unlawful discrimination under Section 274B of the Immigration and Nationality Act.

What is the current version of the Form I-9?

The current version of Form I-9 bears a revision date of 06/05/07 in the lower right hand corner.

What are my obligations in determining whether a document is genuine?

The law does not require you to be an expert regarding the authenticity of documents of identity and work authorization offered as part of the Form I-9 process. Instead, the law states that you must apply a "reasonably prudent person" test and determine whether the document presented "reasonably" appears to be genuine, relates to the individual, and authorizes employment.

What should I do about the Form I-9 when I re-hire an individual?

UTHSC-H has the re-hired employee complete a new I-9.

What should I do if an individual presents a document with an expiration date?

First, you should not refuse to employ someone merely because his/her employment authorization expires at some point in the future. Secondly, you should record the expiration date correctly in Section 2 of the I-9 Form. If the employee's employment authorization document (List A or List C) bears an expiration date, then you should have a methodology in place to notify the employee prior to the expiration of said document(s). You should then record the new document information in Section 3 of the I-9 Form. There are two exceptions to the re-verification rule. Do not undertake re-verification of U.S. passports or permanent alien registration cards, even though each has an expiration date.

What do I do if an individual doesn't have the required document(s)?

You will find that most eligible candidates have a valid List B identity document, or can obtain one relatively quickly. This is not always the case for employment authorizing documents in Lists A and C. The law permits you to accept a receipt for an application to replace an employment authorization document. The receipt authorizes employment for 90 calendar days, at which point the employee must produce the original document. You should record the receipt number in Section 2 and show an expiration date 90 days from the date the receipt is presented to you. Remember to re-verify employment eligibility and complete Section 3 of the form at the end of the 90-day grace period.

What are the penalties for Form I-9 deficiencies?

Employers who fail to properly complete, retain, and/or present I-9 Forms for inspection as required by law may be subject to a civil penalty for violations occurring on or after September 29, 1999 from $110-$1,100 per employee whose Form I-9 is not properly completed, retained, and/or presented. For Form I-9 violations occurring before September 29, 1999, civil penalties range from $100-$1,000. Unlike the substantive violations of “knowingly hiring” or “knowingly continuing to employ”, paperwork violations do not increase for repeat offenses. On the other hand, an employer that entirely ignores the Form I-9 process could be subject to pattern or practice liability, which might result in a fine of up to $10,000 and/or a six-month prison sentence. Although the Department of Homeland Security (DHS) proposes a penalty by issuing a Notice of Intent to Fine, the employer has the right to a hearing before an Administrative Law Judge (ALJ), who ultimately sets the penalty. The ALJ may ignore the fine proposed by the DHS and make a separate determination of what fine is appropriate. In doing so, the ALJ will consider the following factors: (1) size of the employer's business; (2) “good faith” demonstrated by the employer; (3) seriousness of the violation; (4) whether the employer should have known that the employment was unauthorized; and (5) past history of IRCA violations.

Can an employer accept an expired driver’s license to establish a new hire’s identity for Form I-9 purposes?

YES. However, a driver's license can only be used to establish a new hire's identity for Form I-9 purposes (not authorization to work). It is one of a number of List B documents that only establishes identity for I-9 purposes.

Can an employer accept an expired United States passport to establish a new hire's identity and authorization to work?

YES. An expired United States passport establishes both who the holder is, i.e., his/her identity, and that he/she is a United States citizen and therefore authorized to work in the United States.

Why must United States citizens fill out I-9 Forms?

It is the law. The I-9 Form is designed to determine who is authorized to work in the United States. Its purpose is not to determine who is, and is not a citizen. While all citizens are authorized to work in the United States, it is not always easy to recognize who is, and is not a citizen. We are a diverse people drawing our heritage from every country in the world. Employers cannot simply look at new hires and determine, "who needs to complete a Form I-9, and who doesn’t." For this process to be effective, everyone must complete a Form I-9.

Does an employer need to complete a Form I-9 for an Independent Contractor or its employees?

No.

Are employers responsible for completing a Form I-9 for citizens and nationals of the United States?

Yes. While citizens and nationals of the United States are automatically eligible for employment, they too must present the required documents and complete Form I-9.

If someone accepts a job with an employer, but will not start work for a month or longer, can the employer complete a Form I-9 when the employee accepts the job?

Yes. The law requires that an employer complete Form I-9 when a person begins working. However, the employer may complete the form earlier, so long as it completes the form at the same point in the employment process for all employees.

Can I terminate an employee who fails to produce the required documents within three business days?

Yes. You may terminate an employee who fails to produce the required documents, or a receipt for a replacement documents (in the case of lost, stolen or destroyed documents), within three business days of the date employment begins. However, you must apply these practices uniformly to all employees and not just to those who do not appear to be citizens.

What are the legally acceptable documents that a new hire can show for I-9 purposes?

The employer is required to verify both identity and authorization to work in the United States. The back of the I-9 Form describes which documents establish a new hire's identity and work authorization. You may also review the following list of approved documents: http://www.uscis.gov/files/form/i-9.pdf

• Documents listed in List A establish both identity and authorization to work in the United States.
• List B documents only establish identity.
• List C documents only establish employment eligibility, meaning the person is authorized to work in the United States.

If the person shows one of the identity documents, does the employer need anything more?

Yes. The employer must also see proof of authorization to work such as a U.S. Social Security card (a Social Security card that says "Not Valid for Employment" is not acceptable), a birth certificate showing birth in the U.S. or a valid Immigration document showing work authorization such as an employment authorization card or an H-1 or other working visa approval notice.

Can I accept an expired driver's license to establish a new hire's identity for I-9 purposes?

Yes. The INS Handbook for Employers (page 14) specifically states that "You may . . . accept an expired document from List B to establish identity." However, a driver's license can only be used to establish a new hire's identity for I-9 purposes. It is one of a number of documents, called List B documents, that only establish identity for I-9 purposes. The new hire must also provide a document from List C to establish work authorization. This rule also means that if a List B document is used to establish a new hire's identity, you do not need to reverify the I-9 Form when that document expires.

Can I accept an expired United States passport to establish a new hire's identity and authorization to work?

Yes. An expired United States passport establishes both who the holder is (their identity), and that they are a United States citizen and therefore authorized to work in the United States. Page 14 of the INS Handbook for Employers specifically states that "you may accept an expired United States Passport [for I-9 purposes]." If a new hire provided a passport on the I-9 Form, you do not need to reverify the I-9 Form when the passport expires.

Can I refuse to hire a person who shows an employment authorization card that will expire in three months, if the job is permanent?

No. An employer may not refuse to hire because work authorization will expire in the future.

How long must an employer retain an employee's I-9 form?

Nonagricultural employers must retain the I-9 file for 3 years after the date employment begins or 1 year after the person's employment is terminated, whichever is later.

This means that I-9s should be retained for all current employees for as long as they are employed AND continue to maintain them for a year after they are terminated. If an employee leaves before they have been with the employer for 3 years, the employer must maintain the I-9 for longer than 1 year from the date employment is terminated. For example, if an employee leaves after 1 year, the employer must maintain that employee's I-9 for 2 years after they are terminated, because all I-9 forms have to be maintained for a minimum of 3 years.

Can I terminate an employee who fails to produce the required document(s) within three (3) business days?

Yes. You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three(3) business days of the date employment begins. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.

What happens if I properly complete a Form I-9 and the ICE discovers that my employee is not actually authorized to work?

You cannot be charged with a verification violation; however, you cannot knowingly continue to employ this individual. You will have a good faith defense against the imposition of employer sanctions and penalties for knowingly hiring an unauthorized alien unless the government can prove you had actual knowledge of the unauthorized status of the employee.

Do I need an I-9 form for a volunteer?

I-9 forms for volunteers are not required because you are not paying them.