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Who Needs to Complete Form I-9?

Q.  A memo from the U.S. Department of Justice, Immigration and Naturalization Service, John R. Schroeder, Assistant Commissioner, Employer and Labor Relations, dated Feb 18, 1988, “exempt (s) governmental entities that employ citizens as election judges and pollworkers from employment verification procedures of IRCA.” Is this policy still valid?

     A.  Yes, Immigration and Customs Enforcement (ICE) continues to adhere to this policy.  For more information, we suggest that you contact ICE directly. 

Q.  The VA hospital retains unpaid individuals, such as student trainees, interns, and residents. These individuals do not receive pay, benefits, stipends, lodging, food, or any other type of remuneration from the VA besides job training and experience. Do we need to complete Form I-9 for these individuals?

     A.  In general, Forms I-9 are not required for volunteers or other unpaid individuals. Forms I-9 are only required for employees. An employee is a person who performs labor or services in the United States in return for wages or other remuneration. Only the hospital can determine whether a volunteer or other unpaid individual receives remuneration. Remuneration is anything of value an employer gives to a volunteer in exchange for labor or services. Remuneration can come in many forms, such as money, meals, lodging and other benefits, but does not include gifts. If the hospital determines that the volunteer or unpaid intern will receive something of value in exchange for labor or services, the hospital should complete Form I-9. Nonimmigrants who are temporarily in the United States should take care to ensure that the volunteer work, depending on the type of work and the specific facts presented, does not violate their immigration status.

Q.  Do employers need to complete new Forms I-9 for retired employees who were originally hired before Nov. 7, 1986, and who come back to work after retiring?

      A. A retired employee who separated from the company and later returned should complete Form I-9 even if the employee was originally hired before Nov. 7, 1986. This employee is considered a new hire.

Q.  Should employers ask volunteers to complete Form I-9?

     A.  Volunteers do not need to complete Forms I-9 unless an employer determines the volunteers will receive something of value (also known as remuneration) for their work. If they receive remuneration such as housing, they are considered employees who must complete Form I-9.

Q.  Do employees hired on or before Nov. 6, 1986, need to complete Form I-9 if they are transferred to work in the United States after working overseas since their original hire date? 

     A.  Yes, employees who have not been working in the United States and never completed Form I-9 are considered new hires when transferred to work in the United States and must complete Form I-9. 

Q.  When an employee transfers to the United States after working abroad, what hire date should the employer write on Form I-9?

     A.  Write the date the employee begins working in the United States in the certification block in Section 2. The time the employee worked abroad was not subject to Form I-9 rules.

Q.  Should an employer complete Form I-9 if a new employee attends a few days of training in the United States before starting his or her job in a foreign country?

     A.  If the employer is paying for training that is required for the job, Form I-9 should be completed. An employer must complete Form I-9 even for an employee who will attend training in the United States only for one day. If the employee is not yet receiving wages and the training is voluntary—or if the training is paid for personally by the employee and the employee will not be reimbursed—then it is likely that Form I-9 would not be required.

Q.  Do employers have to update or complete a new Form I-9 when disbursing back pay to an individual who no longer works for the company.

     A.  No. Employers do not update or complete Form I-9 if only disbursing back pay to an individual who will not perform services or labor.

Q.  Should employers complete Form I-9 for employees who will work only one day?

     A.  Yes. Employers must complete Form I-9 for each employee hired to work in the United States, even if the employee works only one day.

Q.  I discovered that I do not have a completed Form I-9 for a former employee who was hired after Nov. 6, 1986. Can I require that the former employee complete Form I-9 before I issue him or her a final paycheck or a W-2?

     A.  No. You may not withhold pay for work completed or a W-2 form from any employee for any reason associated with Form I-9. 

Q.  Must both co-owners in a partnership complete Form I-9? What if one owner refuses to complete Form I-9?

    A.  Form I-9 requirements are triggered by the hire of an individual for employment in the United States. If either or both “co-owners” were hired by the employer/partnership, then each co-owner must complete Form I-9.  If the co-owner/employee cannot produce acceptable documentation or refuses to complete Form I-9, he or she cannot work for the partnership for pay. Failure to comply with Form I-9 requirements could result in civil penalties against the employer.

Last Reviewed/Updated: 01/12/2012