Starting November 1, 2023, all employers will be required to use a new I-9 Form, the form used to verify an employee’s eligibility to work in the United States. I-9s must be completed on all new hires who will perform work in the United States. Employers may switch to the new form now or may continue using the old one until its expiration on October 31, 2023. The new form is available at https://www.uscis.gov/i-9. (The Spanish form is available as an aid, but outside of Puerto Rico, the English form is the one that must be completed.) The new form simplifies the previous form, making only minor substantive changes.
In most circumstances, the I-9 process is fairly straightforward. The employer must review documents establishing the employee’s identity and eligibility to work in the United States and complete the I-9. On or before the employee’s first day of work (but not before the employee has accepted an offer of employment), the employee should be provided the I-9 form. The employee must complete Section 1 no later than the first day of work. Within three business days of the first day of work, the employee must show the employer original documents (such as a passport, drivers’ license, or Social Security card) that prove the employee’s identity and authorization to work in the United States. The employer is only obligated to ensure that the documents appear valid on their face and that they pertain to the person in question. The employer fills out Section 2 of the Form I-9 and copies the employee’s original documents (not required, but recommended).
The process typically is completed one time, when the employee is first hired. There are limited circumstances when re-verification is required (Supplement B on the form). If an employee leaves and is rehired within 3 years or if an employee is rehired with a name change, the employee’s status should be re-verified and Supplement B should be completed. If the employee is rehired after 3 years, a new form must be completed. If an employee’s work authorization documents expire, re-verification is required.
If the documents appear to be forged or invalid (such as a Social Security card with a number that is clearly fake or a driver’s license for another person), the employer should notify the employee that the documents are unacceptable and request appropriate documents. It is important to note that the employer cannot specify which documents it wants and it should not discriminate between citizens and non-citizens or afford more scrutiny to certain groups. If the employee cannot provide valid documents, he or she simply cannot start work, even if the employer believes the employee is a citizen or is otherwise authorized to work.
Federal contractors and employers in certain states are required to use a computer-based verification program known as e-Verify. E-Verify lets the employer know whether the employee is authorized to work in the United States by validating the information, while employers who only use the I-9 form are engaging in due diligence but are not required to be “right” about whether the employee is actually authorized to work in the United States. However, employers may not knowingly employ someone who is not authorized to work in the United States. Employers using E-Verify can now remotely examine documents, rather than examining them in person, as long as the employer examines and retains copies of all documents, conducts a live video interaction with the employee, and creates an E-Verify case if the employee is a new hire. Employers not enrolled in E-Verify may not utilize this alternative procedure and must examine documents in person. In the case of a remote employee and an employer not willing or permitted to utilize this alternative procedure, an authorized representative may examine the documents in person in lieu of the employer.
Our team of labor and employment attorneys can assist employers in ensuring compliance with all applicable labor and employment laws in the hiring process and throughout the employment relationship. Contact us to arrange a self-audit for your organization.