Form I-9 regulations allow employers to choose whether or not to keep copies of documentation employees submit to complete Form I-9. Therefore, you may choose to begin or end the practice of keeping copies of documentation at any time, as long as you do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.
You should not shred previously retained copies of documents. DHS regulations provide that once copies of documents are made, they must be retained with the Forms I-9 or with the employee’s records.
Additionally, if you participate in E-Verify and the employee presented a document used as part of Photo Matching, currently the U.S. passport and passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766), you must retain a photocopy of the document he or she presented and continue to retain a photocopies of these documents if presented by new hires.
Yes, you can accept a document issued by INS if the document is unexpired and reasonably appears to be genuine and to relate to the individual presenting it. Effective March 1, 2003, the functions of the former INS were transferred to three agencies within the new DHS: USCIS, CBP, and ICE. Most immigration documents acceptable for Form I-9 use are issued by USCIS. Some documents issued by the former INS before March 1, 2003, such as Permanent Resident Cards or Forms I-94 noting asylee status, may still be within their period of validity. If otherwise acceptable, a document should not be rejected because it was issued by INS rather than DHS. It should also be noted that INS documents may bear dates of issuance after March 1, 2003, as it took some time in 2003 to modify document forms to reflect the new USCIS identity.
DHS cannot double-check the status of your new hire. If you participate in E-Verify, it confirms the employment authorization of your newly hired employees. You may call DHS at 1-888-464-4218 or visit www.dhs.gov/E- Verify for more information on E-Verify. You also may contact DHS if you have a legitimate reason to believe documentation may not be valid.
No, as long as the Social Security card is unrestricted. Your employee must be allowed to choose what documentation to present from either List A or List C. If an employee presents an unrestricted Social Security card upon reverification, the employee does not also need to present a current DHS document. However, if an employee presents a restricted Social Security card upon reverification (a card that includes one of the following restrictions on its face: Not valid for employment, Valid for work only with INS work authorization, Valid for work only with DHS authorization), you must reject the restricted Social Security card, since it is not an acceptable Form I-9 document, and ask the employee to choose different documentation from List A or List C of Form I-9.
If the document contains a slight spelling variation, and the employee has a reasonable explanation for the variation, the document is acceptable as long as you are satisfied that the document otherwise reasonably appears to be genuine and to relate to him or her.
In this case, the USCIS receipt notice is not an acceptable receipt for Form I-9 purposes. An employee with temporary employment authorization and holding an Employment Authorization Document (Form I-766) should apply for a new card at least 90 days before the expiration of his or her current document. If the employee has a Form I-765, Application for Employment Authorization, pending with USCIS, and the application has been pending for 75 days, instruct your employee to call the National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TDD) about the status of his or her application. USCIS strongly encourages that employees first call the National Customer Service Center before visiting a USCIS office to prevent possible delays. If your employee prefers to check on the status of his or her application at a USCIS office, he or she may schedule an InfoPass appointment at www.infopass.uscis.gov. When your employee’s current Employment Authorization Document (Form I-766) expires, he or she must be able to present a List A document, a List C document, or an acceptable receipt under the receipt rule to satisfy Form I-9 reverification requirements.
The “receipt rule” is designed to cover situations in which an employee is authorized to work at the time of initial hire or reverification, but he or she is not in possession of a document listed on the Lists of Acceptable Documents accompanying Form I-9 because the document is lost, stolen or damaged. Receipts showing that a person has applied for an initial grant of employment authorization or for renewal of employment authorization are not acceptable.
Your employee may present a receipt in lieu of a document listed on Form I-9 to complete Section 2 or Section 3 of Form I-9. The receipt is valid for a temporary period. There are three different documents that qualify as receipts under the rule:
1. A receipt for a replacement document when the document has been lost, stolen, or damaged. The receipt is valid for 90 days. In the case of reverification the receipt is valid until the date your employee’s employment authorization expires. At the end of the receipt validity period, the individual must present the replacement document to complete Form I-9.
NOTE: This rule does not apply to employees who present receipts for new documents following the expiration of their previously held document.
2. A Form I-94/I-94A containing a temporary I-551 stamp and a photograph of the individual, which is considered a receipt for the Permanent Resident Card (Form I-551).The individual must present Form I-551 by the expiration date of the temporary I-551 stamp or within one year from the date of issuance of Form I-94/I-94A if the I-551 stamp does not contain an expiration date.
3. A Form I-94/I-94A containing an unexpired refugee admission stamp. This is considered a receipt for either an Employment Authorization Document (Form I-766) or a combination of an unrestricted Social Security card and List B document. Your employee must present an Employment Authorization Document (Form I-766) or an unrestricted Social Security card in combination with a List B document to complete Form I-9 within 90 days after the date of hire or, in the case of reverification, the date employment authorization expires.
If you participate in E-Verify and the employee presents a document used as part of Photo Matching, currently the U.S. passport and passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766), you must retain a photocopy of the document he or she presents. Other documents may be added to Photo Matching in the future. If you do not participate in E-Verify, you are not required to make photo copies of documents. However, if you wish to make photocopies of documents other than those used in E-Verify, you must do so for all employees. Photocopies must not be used for any other purpose. Photocopying documents does not relieve you of your obligation to fully complete Section 2 of Form I-9, nor is it an acceptable substitute for proper completion of Form I-9 in general.
No. After expiration of the receipt validity period, the employee must present the actual document for which the receipt was presented. Presenting another receipt at the end of this period is not permissible. Under Form I-9 rules, the receipt rule permits an employee to present a “receipt” in lieu of the document itself that satisfies the document presentation requirement for a limited period of time.
Yes. F-1 students may be authorized to work due to severe economic hardship. If granted such work authorization by USCIS, these students are issued Form I-766, “Employment Authorization Card,” that is not limited in the type of employment they may accept. Form I-94 indicating F-1 nonimmigrant status and Form I-20 are not sufficient to show employment authorization for economic hardship-based employment authorization granted by USCIS.
Employers are not expected to be document experts. Employers may reject a document presented by an employee if the document does not reasonably appear to be genuine or to relate to the person presenting it and ask for another acceptable document.
If an employer suspects a document to be fraudulent, he or she may report the incident to ICE by calling toll-free at 1-866-DHS-2ICE.
No. When completing Section 2 of the Form I-9, the employer or authorized representative of the employer must physically examine each original document to determine if it reasonably appears to be genuine and to relate to the employee presenting it. Document examination or review via webcam is not permissible.
No. Employees must present original documents. The only exception is that your employee may present a certified copy of a birth certificate.
No. Expired documents are no longer acceptable for Form I-9. However, you may accept Employment Authorization Documents (Forms I-766) and Permanent Resident Cards (Forms I-551) that appear to be expired on their face, but have been extended by USCIS.
For example, Temporary Protected Status (TPS) beneficiaries whose Employment Authorization Documents (Forms I-766) appear to be expired may be automatically extended in a Federal Register notice. These individuals may continue to work based on their expired Employment Authorization Documents (Forms I-766) during the automatic extension period specified in the Federal Register notice. When the automatic extension of the Employment Authorization Document (Form I-766) expires, you must reverify the employee’s employment authorization. In addition, you may accept an expired Permanent Resident Card (Form I-551) along with a Form I-797, Notice of Action, that indicates that the card is valid for an additional year, which is an acceptable List C evidence of employment authorization for one year as indicated on Form I-797.
You may accept a document with a different name than the name entered in Section 1 provided that you resolve the question of whether the document reasonably relates to the employee. You also may wish to attach a brief memo to Form I-9 stating the reason for the name discrepancy, along with any supporting documentation the employee provides. An employee may provide documentation to support his or her name change, but is not required to do so. If, however, you determine that the document with a different name does not reasonably appear to be genuine and to relate to her, you may ask her to provide other documents from the Lists of Acceptable Documents on Form I-9.
DHS does not require employees to use any specific naming standard for Form I-9. If a new employee enters more than one last name in Section 1, but presents a document that contains only one of those last names, the document he or she presents for Section 2 is acceptable as long as you are satisfied that the document reasonably appears to be genuine and to relate to him or her.
In these situations, you should first ensure that your employee understood and properly completed the Section 1 attestation of their citizenship status. If your employee made a mistake and corrects the attestation, he or she should initial and date the correction, or complete a new Form I-9. If a new Form I-9 is completed, the original Form I-9 should be attached to it with an explanation as to why a new form was completed. If an electronically generated Form I-9 is completed, the audit trail should reflect these changes.
If your employee confirms they properly completed their initial attestation, you should not accept the document(s) if they do not match the status selected by your employee. Although you are not expected to be an immigration law expert, if the documents in question are inconsistent with the status attested to, then the documents do not reasonably relate to the person presenting them.
Yes. You may terminate an employee who fails to produce the required document or documents, or an acceptable receipt for a document, within three business days of the date employment begins.
You must examine the document(s), and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them. You may ask if the employee has other documentation that would satisfy Form I-9 requirements.
If your company completes and retains Forms I-9 in paper format only, your company must retain original Forms I-9 with original handwritten signatures for three years after the date of hire or one year after the date the individual’s employment is terminated, whichever is later.
You may choose to fill out a paper Form I-9 and scan and upload the original signed form to retain it electronically.Once you have securely stored Form I-9 in electronic format, you may destroy the original paper Form I-9.
No. The employee may choose which document(s) he or she wants to present from the Lists of Acceptable Documents. You must accept any document (from List A) or combination of documents (one from List B and one from List C) listed on Form I-9 that reasonably appears on their face to be genuine and to relate to the person presenting them. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA. Individuals who look and/or sound foreign must not be treated differently in the recruiting, hiring, or verification process. For more information relating to discrimination during the Form I-9 process, contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at:
- 1-800-255-8155 (employers)
- 1-800-255-7688 (employees)
- 1-800-237-2515 (TDD) or
- visit OSC’s website at http://www.justice.gov/crt/about/osc/