Who Needs Form I-9?
All employers must complete and retain Form I-9, Employment Eligibility Verification, for every person they hire for employment after Nov. 6, 1986, in the U.S. as long as the person works for pay or other type of payment.
In the Commonwealth of the Northern Mariana Islands (CNMI), employers have had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009 to Nov. 27, 2011. The standard Form I-9 must be used for employees hired on or after Nov. 28, 2011.
Additional guidance for certain employees that fall into special categories is found below:
- Employees in the Commonwealth of the Northern Mariana Islands: Individuals hired for employment in the Commonwealth of the Northern Mariana Islands.
- Employees from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau: Individuals hired for employment who are from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
- Domestic workers: Individuals who perform child care, household tasks, and/or upkeep of a home or surrounding yard on a regular basis in return for wages or other benefits, and who are not independent contractors or providing services on a sporadic basis or for independent contractors or separate businesses.
- Minors: Individuals under the age of 18
- Employees with disabilities: Individuals with physical or mental impairments that significantly limits one or more major life activities and are placed in a job by a nonprofit organization or association, or as part of a rehabilitation program.
- Temporary Protected Status (TPS) beneficiaries: Certain individuals from specific foreign countries beset by extraordinary and temporary conditions such as natural disasters and civil wars.
- Asylees and refugees: Non-U.S. citizens who typically have left their own country and are unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
- Foreign students: Individuals coming temporarily to the U.S. to pursue a full course of study in an approved program in either an academic or vocational institution, or a recognized nonacademic institution. (Academic institutions include colleges, universities, seminary, conservatories, academic high schools, elementary schools, other institutions, and language training programs.)
- Exchange visitors: Individuals coming temporarily to the U.S as participants in exchange programs administered by the U.S. Department of State.
- E-Visa holders: Treaty traders and investors who are citizens or nationals of a country that has a treaty of commerce and navigation with the U.S. and who come to the U.S. under such treaty. This category also includes Australian specialty occupation workers.
- NAFTA (TN) workers: Professionals and other workers from Canada and Mexico coming temporarily under the North American Free Trade Agreement (NAFTA) which created special economic and trade relationships for the U.S., Canada and Mexico. U.S.
- Temporary nonimmigrant workers: Individuals coming to the U.S. lawfully as nonimmigrants to work temporarily in the U.S.
- Mergers and acquisitions: Employers’ Form I-9 responsibilities may be affected when they are acquired by another company or merge with another company.
- Employees resuming their job after a temporary break in employment: Individuals may be considered to be continuing in employment (with no new Form I-9 required) if, for example, they return to work after taking approved paid or unpaid leave or being laid off.
In some cases, employers do not need to complete or keep a Form I-9.
Exceptions for Completing and Retaining Form I-9
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.
Hired On or Before Nov. 6, 1986
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
"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.
Temporary or Staffing Agencies
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.