Form I-9 Employment Eligibility Verification
The Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify the identity and employment authorization of every individual hired in the United States. This verification is accomplished through the Form I-9, Employment Eligibility Verification. For HR professionals preparing for the SHRM exam, understanding I-9 compliance is essential because violations can result in significant penalties.
Employer Obligations Under IRCA
IRCA imposes two primary obligations on employers. First, employers must verify the identity and employment eligibility of all individuals hired after November 6, 1986, by completing the Form I-9. Second, employers must not discriminate against individuals based on their national origin or citizenship status. IRCA's anti-discrimination provisions prohibit employers from treating individuals differently in the verification process based on their appearance, accent, or perceived national origin.
The I-9 Process: Step by Step
The Form I-9 is divided into three sections, each with specific timing requirements:
Section 1: Employee Information and Attestation
The employee must complete Section 1 no later than the first day of employment (but no earlier than the date the job offer is accepted). The employee provides personal information and attests to their citizenship or immigration status. The employer must not assist the employee in completing Section 1 (except for a translator or preparer, who must also sign), and the employer must not request specific documents at this stage.
Section 2: Employer Review and Verification
The employer must examine the employee's documents and complete Section 2 within three business days of the employee's first day of employment. The employee must present original documents (no photocopies) from the lists of acceptable documents:
- List A documents: Establish both identity and employment authorization. Examples include a U.S. passport, permanent resident card (green card), or employment authorization document.
- List B documents: Establish identity only. Examples include a driver's license, state-issued ID card, or school ID with photograph.
- List C documents: Establish employment authorization only. Examples include a Social Security card (unrestricted), birth certificate, or employment authorization document issued by DHS.
An employee must present either one List A document or a combination of one List B document and one List C document. The employer cannot specify which documents the employee must present, nor can the employer request more or different documents than the minimum required.
Section 3: Reverification and Rehires
Section 3 is used for reverification of employment authorization (when a document expires) and for rehires within three years of the original I-9 completion. Employers should reverify before the employee's work authorization expires but should not reverify documents that do not have an expiration date (such as U.S. passports, permanent resident cards, and unrestricted Social Security cards, which do not need reverification for their identity component).
Document Examination Best Practices
When examining documents, employers should review them in the employee's physical presence, determine whether they reasonably appear to be genuine and relate to the employee, and record the document information accurately on the I-9 form. Employers should not over-document by requesting additional or specific types of documents, reject documents that reasonably appear genuine, or treat employees differently based on their national origin or citizenship status. This principle is sometimes called the "anti-discrimination" rule or "document abuse" prevention.
E-Verify
E-Verify is an internet-based system that compares information from the Form I-9 to government records to confirm employment eligibility. While E-Verify is voluntary for most private employers, it is mandatory for federal contractors and subcontractors (under certain contract thresholds), employers in certain states that have enacted mandatory E-Verify laws, and employers hiring H-1B workers (in some circumstances). E-Verify is a supplement to, not a replacement for, the Form I-9 process.
Record Retention Requirements
Employers must retain Form I-9 for three years after the date of hire or one year after the date employment ends, whichever is later. This formula can be remembered as "3 and 1": three years from hire, one year from termination, whichever date is later. Forms should be stored securely and be readily available for government inspection.
Penalties for Non-Compliance
Penalties for I-9 violations can be substantial and include civil fines for paperwork violations (failing to properly complete, retain, or present I-9 forms), civil fines for knowingly hiring or continuing to employ unauthorized workers, criminal penalties for engaging in a pattern or practice of knowingly hiring unauthorized workers, and debarment from government contracts.
SHRM Exam Tips
For the SHRM exam, know the timing requirements (Section 1 by the first day, Section 2 within three business days), the document lists and the rule that employers cannot specify which documents to present, the retention formula (three years from hire or one year from termination, whichever is later), and the anti-discrimination provisions of IRCA. These are frequently tested concepts.