Who Needs to Complete Form I-9?
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.
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How to Complete Form I-9
Q. May employees use a P.O. Box as their address in Section 1?
A. No, employees may not use P.O. Boxes as their address on Form I-9. Employees must enter the physical address of their residence in Section 1 (e.g., "1234 Verification Street"). If the employee's residence does not have a physical address, he or she should enter a description of the location of his or her residence. The following is an example of an acceptable description: "18 miles southwest of Anytown post office near water tower".
Q. Does Form I-9 need to be completed in a specific color of ink?
A. No. Form I-9 does not need to be completed in a specific color of ink. However, the information written on the form must be readable for the entire retention period of the form.
Q. Can an employer prefill (fill in advance) Section 2 with the business or organization name, address and position of the company representative?
A. Yes. Employers may prefill the “Print Name,” “Title” and “Business or Organization Name and Address” blocks of Section 2 of Form I-9.
Q. Can an employer include Form I-9 in a job application packet?
A. No. An employer cannot require an employee to complete Form I-9 before the employee has accepted a job offer. However, the employer can inform applicants that upon hire they must complete Form I-9.
Q. Can a notary public attach an attestation to Form I-9 instead of providing a signature in the signature block of Section 2?
A. No. Section 2 is a review of the documents the employee presents and must be signed. If that section is not signed, Form I-9 is not complete.
Q. May a minor act as a preparer or translator for an employee completing Form I-9?
A. Although the regulations do not expressly prohibit a minor from acting as a preparer/translator for Form I-9, USCIS recommends that employers use their discretion in determining if the minor is old enough to understand the legal ramifications of signing the Preparer/Translator Certification.
Q. Who is responsible for verifying a new employee: the staffing agency or the business to which the worker is assigned? If the business hires the worker permanently, does the business verify the worker at that time? What date should the staffing agency enter in the Hire Date field in Section 2?
A. The entity responsible for verifying a new worker is the entity that is responsible for completing Form I-9 for that worker. The Form I-9 requirement is triggered when a person or entity hires an individual for employment in the United States. A “hire” takes place when employment begins in exchange for wages or other remuneration. Therefore, if the new worker is an employee of the staffing agency such that it is on the staffing agency’s payroll receiving paychecks from the staffing agency, the staffing agency is responsible for completing and retaining Form I-9. If the new worker is an employee of the business such that it is on the business’s payroll receiving paychecks from the business, the business is responsible for completing and retaining Form I-9. If the worker is an employee of the staffing agency, and the business to which the staffing agency has supplied the worker decides to hire that worker and pay the worker directly, the employee would be a new hire of that business, and the business would become responsible for completing a new Form I-9 for that worker from the date of hire.
In the case of a staffing agency, acceptance of an offer and entry into the assignment pool can be considered equivalent to an offer and acceptance of employment, after which Form I-9 may be completed. The agency does not need to delay the verification until the worker actually has accepted a particular assignment. The date the staffing agency should put in Section 2 “Certification” of Form I-9 is the date of acceptance of an offer and entry into the assignment pool.
Q. A foreign national with a B-1 visa is on a three-month training/internship assignment in the United States as part of an apprenticeship/internship with our company. Our company provides the individual with money for meals and gas for him to drive from his apartment to our plant until he completes his internship. Must we complete Form I-9 for this individual?
A. A B-1 visa holder is allowed to receive nominal expenses during eligible B-1 activity, such as the training you have described. Because B-1 activity is not considered employment, a Form I-9 is not required for such activity.
Q. Should I complete the Preparer/Translator section if the company automatically fills out Section 1 for the new employee?
A. Yes, if Section 1 is prepared by someone other than the new employee, the Preparer/Translator section should be completed.
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Is This Document Acceptable?
Q. May I accept an unsigned passport for Form I-9 purposes?
A. Yes. An unsigned passport is acceptable for Form I-9 purposes as long as the document reasonably appears on its face to be genuine and relate to the person presenting the document.
Q. My new employee just handed me an employment authorization document that is not yet valid but will be valid in a few weeks. Can I accept this document and complete Section 2?
A. No. Employers cannot accept documents that will be valid on a future date. In addition, employees cannot begin employment until authorized to do so. For example, if the Designated School Official (DSO) has authorized curricular practical training for a foreign student, the student cannot begin work until the start date approved by the DSO. Employers should reject documents that will be valid in the future and ask the employee to provide other acceptable documentation from the List of Acceptable Documents.
Q. Is an unsigned Social Security card valid?
A. Yes. A signature on the card is not required for the card to be valid. You may accept an unsigned Social Security card as long as the card reasonably appears to be genuine and to relate to the person presenting it.
Q. Is a laminated Social Security card valid?
A. It depends. If the card states on the back “not valid if laminated,” then the laminated Social Security card is not valid. The Social Security Administration (SSA) advises cardholders not to laminate Social Security cards. Metal or plastic reproductions of Social Security cards are not acceptable for Form I-9 purposes.
Q. How can an employer verify an employee’s Social Security number?
A. If an employer has signed up to use E-Verify, then E-Verify will confirm that an employee’s name and Social Security number (SSN) match. E-Verify is administered by the U.S. Department of Homeland Security, USCIS, Verification Division, and the Social Security Administration.
In short, employers submit information taken from a new hire's Form I-9 (including the SSN through E-Verify) to the SSA and USCIS to determine whether the information matches government records and whether the new hire is authorized to work in the United States.
SSA also provides Social Security Number Verification Service (SSNVS), one of the services offered by Business Services Online. Available at http://www.ssa.gov/ssnv.htm, it allows registered users (employers and certain third-party submitters) to verify the names and Social Security numbers of employees against the SSA’s records.
If the name and SSN do not match SSA’s records, the employer is prohibited to take any adverse action (such as laying off, suspending, discriminating against or firing) against the employee. Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may be in violation of state or federal law.
Remember that an initial SSNVS mismatch does not mean that an individual is not work-authorized. Information received from SSNVS makes no statement regarding a worker's immigration status. It means only that there is an initial mismatch, which may be based upon various causes including errors in government databases.
Restrictions on using SSNVS:
While the service is available to all employers and third-party submitters, it can only be used to verify current or former employees and only for wage reporting (Form W-2) purposes.
Do not use SSNVS before hiring an employee.
If SSNVS issues a mismatch, the employer should compare the failed SSN with the employment record. If the employer made a typographical error, he should correct the error and resubmit the corrected data. If the employer’s record and the employee's Social Security card match, the employer should give the employee an opportunity to resolve the mismatch. The employer should correct the records and resubmit the corrected information to the SSA.
Q. Is a Social Security card with the annotation “For Social Security and Tax Purposes Only” valid for employment?
A. Yes. There are currently 50 different versions of the Social Security card, all of which may be valid for employment. Visit the Social Security website to see the chart that lists the changes in the SSN card through the years.
Cards that are NOT acceptable List C documents may include any one of the following annotations:
NOT VALID FOR EMPLOYMENT.
VALID FOR WORK ONLY WITH INS AUTHORIZATION.
VALID FOR WORK ONLY WITH DHS AUTHORIZATION.
Q. Is the Transit Worker Identification Card (TWIC) an acceptable List C document?
A. No. However, the TWIC card is an acceptable List B identity document.
Q. Does a state-issued enhanced driver’s license qualify as a List A document?
A. No, the enhanced driver’s license is a List B document.
Q. The U.S. Department of State discontinued the Certificate of Report of Birth (DS-1350) in December 2010. It also began issuing a new version of the Consular Report of Birth Abroad (FS-240) to replace the Certification of Birth Abroad (FS-545) in January 2011. Will the new Consular Report of Birth Abroad (FS-240) be included on List C of the Lists of Acceptable Documents? Will the Certificate of Birth Report (DS-1350) and Certification of Birth Abroad (FS-545) still be acceptable for Form I-9 purposes?
A. USCIS may not add or subtract documents from the List of Acceptable Documents for Form I-9 until it makes changes to the regulations following proper rulemaking procedures. USCIS is in the process of evaluating the List of Acceptable Documents for a possible rulemaking. The Certificate of Birth Report (DS-1350) and Certification of Birth Abroad (FS-545) will remain acceptable for Form I-9 purposes.
Q. My new employee says he is a foreign student who is allowed to work for any employer because of economic hardship. Can he work for me?
A. Most F-1 students are limited to employment directly related to their area of study. Employers should check the category code and guidance on our website before hiring a foreign student.
There are F-1 students who may be authorized to work due to severe economic hardship. These students are not limited in the type of employment they may accept. The student’s Employment Authorization Document (Form I-766 card with photograph) will contain the category code C33, which lets you know the student can work for any employer.
Q. Can an employer accept an expired driver’s license with a paper document from the state department of motor vehicles (DMV) stating that the paper document serves as a temporary license?
A. Yes. A state-issued temporary driver’s license is an acceptable List B document provided it contains a photograph or identifying information including name, date of birth, gender, height, eye color, and address. If the temporary driver’s license has conditions, such as that the expired license must accompany the temporary driver’s license for it to be valid, then those conditions must be followed.
Q. What constitutes a “draft record” for Form I-9 purposes?
A. Any document issued by the Selective Service showing that a man has registered with the Selective Service System is considered a draft record on List B for Form I-9 purposes. Men who have registered since 1983 will have a registration acknowledgment card from the Selective Service. For more information on the Selective Service registration acknowledgment card, visit the Selective Service’s website at www.sss.gov.
Q. May an employee present an extension for the receipt they presented when he or she originally completed Form I-9?
A. 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. There are 3 types of “receipts:” (1) a receipt for the application for a lost, stolen, or destroyed document (90-day receipt); (2) Arrival/Departure Record (Form I-94/94A) with a temporary I-551 stamp and photograph (expiration date on stamp); (3) Arrival/Departure Record (Form I-94-94A) with refugee admission stamp (90-day receipt). 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.
Q. Are schools required to put the employer’s name on page 3 of the Form I-20 in order for the student to be authorized to work for that specific employer?
A. Yes, the designated school official is still required to enter the employer’s name on a student’s Form I-20 per the regulations governing F-1 nonimmigrant employment.
Q. Is a Trusted Traveler card, or SENTRI card an acceptable document for Form I-9 purposes?
A. SENTRI cards, also known as Trusted Traveler cards, are acceptable under List B, #2 as an ID card issued by a federal agency, namely Customs and Border Protection (CBP).
Q. Is a birth certificate issued by the Panama Canal Zone in 1968 an acceptable List C document?
A. Acceptable birth certificates are those issued by a State, county, municipal authority, or outlying possession of the United States bearing an official seal. A birth certificate issued by the Panama Canal Zone in 1968 is not an acceptable List C document because the zone is not an outlying possession of the United States as defined by 8 U.S.C. 1101(a)(29). The employer should reject the document and ask that the employee present a different List C document.
Q. Where can I find an example of a Native American Tribal Document?
A. Each of the 564 federally recognized tribes may issue its own unique tribal document based on private tribal information. USCIS does not have examples of these tribal documents nor can it provide guidelines on specific tribal documents.
Q. May I accept a permanent resident card with no expiration date and a picture of the holder as an infant?
A. Older green cards (Forms I-551), called Resident Alien cards, were issued by the U.S. Department of Justice, Immigration and Naturalization Service, between January 1977 and August 1989. These cards are peach in color and contain the bearer’s fingerprint and photograph. They do not have expiration dates and are valid indefinitely. If an employee presents this type of card to complete Form I-9, you must accept the card, as long as it reasonably appears to be genuine and to relate to the individual presenting it. If you cannot determine whether the card relates to the individual presenting it, you may reject the document and ask for another acceptable document.
Q. Are employment authorization documents stating “Fingerprint not available” acceptable for Form I-9?
A. Yes, these are still acceptable documents for Form I-9. “Fingerprint not available” means either that the card was issued before fingerprinting or the press print may have been waived.
Q. Is a Mexico Consular ID Card an acceptable document for the Form I-9?
A. The Mexican government issues consular ID cards to Mexican nationals living in the United States. These cards are not acceptable proof of identity for Form I-9 purposes.
Q. Is a Certificate of Live Birth an acceptable List C document?
A. A Certificate of Live Birth may qualify as a birth certificate (No. 4 on List C of the Lists of Acceptable Documents) if it is an original or a certified copy that is issued by a state, county, municipal authority, or territory of the United States and bears an official seal. Versions of birth certificates can vary greatly based on the issuing authority and year of birth.
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Q. If an employer finds a mistake on previously completed Forms I-9, how should the employer correct the mistake?
A. The employer may draw a line through inaccurate information, write the correct information on Form I-9, initial and date of the correction. The employer should also make a note in the file that a self-audit was completed on that date.
Q. Does the employer need to fill out a new Form I-9 if the employee signs not in the signature box but right above the signature box?
A. No. As long as it is clear that the signature relates to the attestation (“I attest, under penalty of perjury …”), there is no need to complete a new Form I-9 or correct the placement of the signature.
Q. What should I do if an invalid version of Form I-9 was completed for an employee at the time of hire?
A. If an outdated and invalid version of Form I-9 was completed for an employee at the time of hire, a new Form I-9 using the correction version should be completed and attached to the previously completed Form I-9.
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Storing Form I-9
Q. Has there been a change in the regulations concerning keeping photocopies of the documents employees present to demonstrate employment authorization?
A. The employment eligibility verification and employer sanctions provisions in the Immigration and Nationality Act (INA) have always provided that employers may choose to make copies of documents, stating, “notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection …” (INA section 274A(b)(4), 8 USC §1324a(b)(4)). However, once an employer photocopies a document an employee presents, the employer must retain the photocopy with Form I-9 or store it with the employee’s records. See 8 CFR 274a.2(b)(3). The option to store copies with the employee’s records is a relatively new option added to the regulations in 2010. See 75 Fed. Reg. 42575-01 (July 22, 2010).
Q. If a natural disaster or any other unforeseen occurrence destroys a company’s stored Forms I-9, what should the company do?
A. Employers whose Forms I-9 are missing and/or destroyed as a result of a natural disaster should complete new Forms I-9 to the extent reasonably possible for those employees and attach a memo stating the reason they were redone.
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Electronic Forms I-9
Q. My company is creating an electronic Form I-9. We would like to include a drop-down menu that shows which documents are acceptable for each citizenship and immigration status. Is there a resource that shows which documents individuals with different citizenship or immigration statuses may present to complete Form I-9?
A. The Citizenship Status/Document Matrix may be used as a resource for specific documents issued to categories of individuals based on citizenship and immigration status that may be presented to complete Form I-9.
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