Questions and Answers
Who Needs to Complete Form I-9?
Are election judges and poll workers exempt from completing Forms I-9 in accordance with U.S. Department of Justice memo dated Feb 18, 1988 signed by John R. Schroeder?
Yes, Immigration and Customs Enforcement (ICE) continues to adhere to this policy. For more information, please contact ICE directly.
Section 1 - Employee Information and Verification
Employees must complete every applicable field in Section 1 of the Form I-9 with the exception of the fields requesting the employees' telephone number, e-mail address, and Social Security number. However, an employee must enter his or her Social Security number if the employer participates in E-Verify. Follow the Form I-9 instructions when determining if a field can be blank or if N/A is required. The instructions state when an employee may use N/A or must use N/A. Required fields must be completed with either the information requested or N/A.
Section 2 - Employer Review and Verification
No. Section 2 is a review of the documents the employee presents and must be signed. If Section 2 is not signed by the individual who reviewed the documents, Form I-9 is not complete.
Section 3 - Updating and Reverification (Rehires)
Yes. The employee must present acceptable evidence of employment authorization (from List A or List C) to show they are still authorized to work. When the employer determines the document is unexpired, appears to be genuine, and relates to the employee, they must record the document title, document number, and expiration date, if any, in Section 3, then sign and date Section 3.
An H-1B employee who is verifying continued H-1B employment authorization may choose to present his or her Form I-94 as List C #7 document.
No, Form I-94 and Form I-20 do not establish employment authorization for reverification in the case of F-1 students seeking employment under optional practical training (OPT), STEM OPT extension, or off-campus employment based on severe economic hardship. If employment authorization is granted in these cases, USCIS issues an Employment Authorization Document (EAD) as evidence of employment authorization.
The student’s expired OPT EAD, together with an endorsed Form I-20, are considered an acceptable List A documents for a student who is participating in OPT and whose F-1 status and employment authorization have been automatically extended as a result of a timely filed H-1B change of status petition (cap-gap).
An expired OPT EAD with an endorsed Form I-20 is also an acceptable List A document in the case of the F-1 OPT student with a pending STEM extension application. The student is authorized to work until USCIS makes a decision on his or her application, but not more than 180 days from the date of the initial OPT EAD expiration date.
For more guidance on reverification and F-1 STEM OPT extensions and cap-gap for students, see the Guidance for Completing Form I-9 Handbook (PDF).
When a foreign national employee provides a List A document that includes a foreign passport, an I-94, and I-20, should/could we re-verify using more than one document under Section 3 or just one document at a time?
The employee's foreign passport establishes identity and therefore does not trigger reverification when it expires. In the case of a student, the Form I-94 and I-20 establish employment authorization. Reverification is triggered by the document with the earlier end date. Both documents should be treated as a group; reverification should not be completed each time one of the documents in the group expires. To meet the reverification requirements, the employee may present any document of his or her choice from List A or List C. If the document that the employee chooses to present consists of a combination of documents (e.g., foreign passport with Form I-94 indicating the employee's nonimmigrant classification that is work authorized incident to status for a specific employer), then all documents must be recorded in Section 3.
Questions About Documents
The confirmation receipt printed from the USCIS website states that it is not a receipt notice and cannot be used as evidence of a pending application. It is not an acceptable receipt for a lost EAD. Form I-797C, Notice of Action, which is mailed to the employee by USCIS is an acceptable receipt to acknowledge that an application for a replacement EAD has been submitted.
Yes. Form I-94, in combination with Form I-20 is an acceptable List C #7 document. The documents individually do not qualify.
An employee must present the actual document for which a receipt was issued within 90 days of his or her first day of employment. In the case of reverification, the employee must present an actual document within 90 days from the date by which reverification is required (i.e., when his or her employment authorization expires).
For example, if an employee begins work on Monday, the employer should count Tuesday as Day 1 and count 90 days to determine the validity period of the receipt.
If the same employee begins work on Monday but does not provide the receipt to complete Section 2 until Thursday, the employer should still count Tuesday as Day 1 and count 90 days to determine the validity period of the receipt.
Form I-9 regulations allow employers to choose whether to keep copies of documents employees submit to complete their Form I-9. Therefore, you may choose to begin or end the practice of keeping copies of documents 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.
Do not shred previously retained copies of documents. DHS regulations state that once you make copies of documents, you must retain them with the Forms I-9 or store them with the employee's records.
Additionally, if you participate in E-Verify, you must retain a copy of any document any employee presents that triggers photo matching. If an employee presents a U.S. passport card, Permanent Resident Card (Form I-551), or the Employment Authorization Document (Form I-766), you must copy the front and back of these cards. If the employee presents a U.S. passport, you must copy the front page and the back barcode page.
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.
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.
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.
List A Documents - Work Authorization and Identity
A Permanent Resident Card with a USCIS-issued sticker extending its validity is a List A document and acceptable for Form I-9. Employers are not required to reverify the employment eligibility of a lawful permanent resident and should not reverify the employment authorization of this employee.
To complete Form I-9 for on-campus employment, the F-1 student employee is only required to present an unexpired foreign passport and an I-94 indicating F-1 nonimmigrant status. Employers are not required to record information from the student's Form I-20 in Section 2. On-campus employment is authorized until the completion of the student's course of study. The F-1 nonimmigrant admission notation on Form I-94/I-94A usually states "D/S" which means duration of status. The F-1 student's Form I-20 bears the latest date by which studies are to be completed. This date can be used as the date by which the employers should reverify the student's employment authorization and should be entered by the employee in Section 1.
List B Documents - Identity
A state-issued temporary driver's license is an acceptable Form I-9 List B document if it contains a photograph or identifying information such as name, date of birth, gender, height, eye color, and address. Any conditions on the temporary driver's license, such as that the expired license must accompany the temporary driver's license for it to be valid, must be followed.
The employer must make its own determination regarding whether a particular federal-issued document an employee presents to complete Form I-9 is acceptable. This includes reviewing the document to determine whether it meets the description of a List B #2 document provided in the List of Acceptable Documents and whether the document reasonably appears to be genuine and to relate to the person presenting it.
List C Documents - Work Authorization
No. A Form I-94, Arrival/Departure Record, stamped with "parole" is not evidence of employment authorization and, therefore, is not an acceptable List C document. Before parolees can work, they must apply for employment authorization. If we approve their application, we will issue an Employment Authorization Document, which is an acceptable List A document.
Note: A foreign entrepreneur paroled under the International Entrepreneur Rule Program is authorized employment incident to the grant of parole. The paroled entrepreneur’s foreign passport and Form I-94, Arrival/Departure Record, bearing the same name as the passport and unexpired endorsement of the entrepreneur’s parole (PE-1) are acceptable as a List A document.
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.
The employer should attach a note to the employee’s Form I-9 explaining the discrepancy. Ensure the note is signed and dated.
An employer may not correct errors or omissions in Section 1. If an employer discovers an error or omission in Section 1 of an employee’s Form I-9, the employer should ask the employee to correct the error. The best way to correct the error is to have the employee:
Draw a line through the incorrect information;
Enter the correct or omitted information; and
Initial and date the correction or omitted information.
Employees needing assistance to correct or enter omitted information in Section 1 can have a preparer and/or translator help with the correction or omitted information. The preparer or translator should:
Make the correction or note the omitted information or help the employee make the correction or note the omitted information. The employee or preparer or translator should draw a line through the incorrect information and enter the correct information or note the omitted information;
Have the employee initial and date the correction or omitted information if able; and
Initial and date the correction or omitted information next to the employee’s initials.
If the preparer and/or translator who helped with a correction or noted omitted information completed the preparer and/or translator certification block when the employee initially completed the Form I-9, he or she should not complete the certification block again. If the preparer and/or translator did not previously complete the preparer and/or translator certification block, he or she should:
Complete the certification block; or
If the certification block was previously completed by a different preparer and/or translator:
o Draw a line through the previous preparer and/or translator information; and
o Enter the new preparer and/or translator information (and indicate “for corrections”).
If the employee is no longer working for the employer, the employer should attach to the existing form a signed and dated statement identifying the error or omission and explaining why corrections could not be made (e.g., because the employee no longer works for the employer).
An employer may only correct errors made in Section 2 or Section 3 of the Form I-9. The best way to correct the form is to:
Draw a line through the incorrect information;
Enter the correct or omitted information; and
Initial and date the correction or omitted information.
An employer should not conceal any changes made on the Form I-9—for example, by erasing text or using correction fluid, nor should the employer backdate the Form I-9. An employer that made multiple errors in Section 2 or 3 of the form may redo the section(s) containing the errors on a new Form I-9, and attach it to the previously completed form. An employer should attach an explanation of the changes made to an existing Form I-9 or the reason a new Form I-9 was completed, and sign and date the explanation.
If a Form I-9 was never completed or is missing, the current version of the Form I-9 should be completed as soon as possible. Employers should not backdate the form, but should clearly state the actual date employment began in the certification portion of Section 2. Employers should attach a signed and dated explanation of the corrective action taken.
Storing Form I-9
Employers who complete and retain Form I-9 in paper format only must retain the Form I-9 with the original handwritten signatures. Employers must retain Forms I-9 for three years after the date of hire or one year after the date the individual's employment is terminated, whichever is later. Photocopies or faxed copies of completed Form I-9 are not acceptable to meet this retention requirement.
Employers may choose to scan and upload the original, signed forms to retain them electronically. Once these Forms I-9 are securely stored in electronic format, the original paper Forms I-9 may be destroyed.
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.
Electronic Form I-9
Employers who wish to implement an electronic Form I-9 with an electronic signature function may re-create a Form I-9 that includes such a function, as long as the resulting form is legible; there is no change to the name, content, or sequence of the data elements and instructions; no additional data elements or language are inserted; and the standards specified under 8 CFR 274a.2(e) through (i), as applicable, are met. The system used to generate and store the electronic Form I-9 also must comply with regulations found at 8 CFR 274a.2 (e)-(i). See pages 28-29 of the Handbook for Employers (M-274) (PDF): Instructions for Completing Form I-9 for more information.
Different Versions of Form I-9
Employers must use only the newest version of Form I-9. Whether the employee completes Section 1 of Form I-9 on the older version of Form I-9, the employer should complete Section 2 on the same version of the form, even if this occurs on or after the required start day for use of the new Form I-9.