Form I-9

To be eligible for completing a Form I-9, employees must fall into one of the following categories:

• U.S. citizen
• Non citizen national of the United States
• Lawful Permanent Resident
• Alien authorized to work

Employees are responsible for filling out and signing Section 1 of Form I-9.  This must be completed no later than the first day of employment. Documentation that establishes the employee’s identity and employment authorization must be submitted to the employer within 3 business days of starting work for pay. Employees may provide either one document that establishes both identity and employment authorization (ex., a U.S. passport), or a combination of documents that show evidence of identity and employment authorization (ex., a U.S. Driver’s license and a social security card). The employer cannot specify which documents an employee may present. A list of acceptable types of evidence can be found in the Form I-9 instructions.

Employers are responsible for filling out Section 2 of Form I-9 no later than the 3 business days after the start of the employee’s first day of paid employment. They must also examine all presented documentation to ensure that it appears genuine. It is the employer’s responsibility to ensure that all the information is filled out properly and completely in both Section 1 and Section 2. It is strongly advised that employers use the government’s E-Verify electronic verification system to check employment authorization records and ensure the form is filled out properly. Most employers do use E-Verify as there are already laws set in place regarding its use in many U.S. states. Employers may designate an authorized representative to complete Section 2 and fulfill all I-9 verification responsibilities; however, it is still the employer’s responsibility to ensure there are no violations with the Form I-9 or the verification process. 

    Employers must retain I-9 records for the duration of the employee’s employment and for a specific period after the employment has been terminated. This retention period is three years after the date employment began, or one year from the date that the employment was terminated, whichever is later. It is advised that I-9 records are stored in a location that is quickly accessible in the event that government officials request them for inspection. The retention of these records must be in either paper, electronic, or microfilm/microfiche format. 

It is extremely important for employers to make sure that they are in compliance with all regulations in regard to filing Form I-9. They must verify the identities and employment authorization of each employee and ensure the completion and retention of each employee’s Form I-9.  Failure to maintain I-9 compliance or failure to properly and completely fill out all documentation can result in serious penalties and legal ramifications. It is also important that an employer follows anti-discriminatory provisions. An employer cannot refuse to hire an individual because the I-9 states they are not a U.S. citizen, for example, nor can an employer request specific documentation of identity or work authorization other than what the employee chooses to provide. 

If the Department of Homeland Security (DHS) or the Social Security Administration (SSA) identifies an issue with an I-9 not matching their records, they may issue what is called a Tentative Non confirmation. This may be issued for a variety of reasons, such as citizenship or immigration status not being updated with SSA, information entered incorrectly by the employer, an ID that cannot be verified, and several other reasons. If this happens, the employer must notify the employee of the TNC by providing the employee with a Further Action Notice (FAN).  This will explain which agency the TNC came from and why, as well as what actions the employee should take to resolve the TNC. If the employee does not take action to resolve the TNC within 10 working days, E-Verify will change the employee’s status to SSA or DHS Final Non confirmation. At this point, the employer may terminate the employment. If the employee does take action to resolve the TNC, the case will be updated to reflect the result. Sometimes SSA and DHS may require additional information from the employer or the employee, or they are processing and reviewing the case which may take longer than 10 working days to confirm employment eligibility. If the case is in continuance, an employer cannot terminate, suspend, delay training, withhold or decrease the pay for an employee because the employee received a TNC. Once the issue is resolved and the employee has received a final case status, the employer must close the case in E-Verify.