You are required to complete and retain a Form I-9 for every employee you hire for employment in the United States, except for:
- Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times. (Some limitations to this exception apply.) Also excepted are individuals hired for employment in the Commonwealth of the Northern Mariana Islands (CNMI) on or before Nov. 27, 2009.
- Individuals employed for casual domestic work in a private home on a sporadic, irregular or intermittent basis.
- Independent contractors or individuals providing labor to you if they are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).
- Individuals not physically working in the U.S.
Federal law prohibits individuals or businesses from contracting with an independent contractor knowing that the independent contractor is not authorized to work in the U.S.
If you hired your employee on or before Nov. 6, 1986, and still employ that person, you are generally not required to complete Form I-9 for that employee. For employers in the Commonwealth of the Northern Mariana Islands (CNMI), Form I-9 is not required for employees hired for employment in the CNMI on or before Nov. 27, 2009 and who continue in their employment with the same employer after that date.
If your company merges with another company, you may need to complete Form I-9 for an employee of the newly acquired company who was originally hired on or before Nov. 6,1986.Learn more about mergers and acquisition.
"Casual domestic services" refers to individuals (such as a handyman, babysitter or cleaning person) paid by you to help in or around your private home, provided the services are:
- Sporadic, meaning they occur occasionally, singly or in random instances;
- Irregular, meaning the occurrence or activity lacks continuity or regularity; or
- Intermittent, meaning they do not occur continuously but instead comes and goes at intervals.
Form I-9 is not required for casual domestic services.
An independent contractor is not considered an employee for Form I-9 purposes and does not need to complete Form I-9. Independent contractors includes individuals or entities who carry on independent business, contract to do a project according to their own means and methods, and are subject to control only to the results of the work and not what and how it will be done. Many factors are considered when determining whether or not an individual or entity is an independent contractor.
Independent contractors are individuals or entities that may:
- Contract to do a job according to their own means and methods.
- Supply their own tools or materials.
- Offer their services to the general public.
- Work for a number of clients at the same time.
- Have an opportunity for profit or loss as a result of labor or services provided.
- Invest in facilities to do all or part of the work.
- Direct the order in which the work is to be done.
- Determine the hours during which the work is to be done.
- Are subject to control only as to results, not what and how the work will be done.
The individual or business that is contracting with the independent contractor is not required to complete Form I-9 for the contractor. Remember, however, that federal law prohibits individuals or businesses from contracting with an independent contractor knowing that the independent contractor is not authorized to work in the U.S.
In most cases, if your company uses a temporary or staffing agency to obtain workers, those workers are employees of that agency and provide services to your company as independent contractors. The agency completes Form I-9 for each worker they provide to your company, because the workers are considered employees of the agency, not of your company.
An agency may complete Form I-9 before one of its workers accepts a particular assignment, even if:
- The worker has not yet been offered or accepted an actual assignment.
- There is the possibility that no actual work may arise from the arrangement.