Completing the I-9 Form

Completing theI-9Form

The USCIS is responsible for issuing rules relating to the Form I-9, which employers should be careful to accurately complete.

The current version of Form I-9 – Employment Eligibility Verification is revision number 10/21/19, which appears on the form’s bottom left corner.

For more information, visit the USCIS I-9 Central website.

Employee Completes Section 1

All employees may complete section 1 of the Form I-9 any time between accepting a job offer and the first day of work for pay by filling in the correct information and signing and dating the form — but they must complete this section by the first day of work for pay. You should review the form to ensure that the employee prints the information clearly.

You may not ask an individual to complete section 1 before that person has accepted a job offer. Do not include the Form 1-9 with the job application. You can have your employees complete the form either on their first day of employment or before their first day if they have already accepted your job offer.

USCIS provides detailed instructions on completing the Form I-9. See the I-9 – Employment Eligibility Verification – Instructions. You must ensure that all pages of the instructions and Lists of Acceptable Documents are available, either in print or electronically, to all employees completing this form.

You cannot ask a potential employee to provide you with a specific document with his/her Social Security number on it. Doing so may constitute unlawful discrimination. For information on verifying Social Security numbers, please see Employee Identification.

According to the instructions for section 1 of the Form I-9, providing a Social Security number on a Form I-9 is voluntary, unless the employer participates in E-Verify. E-Verify requires a Social Security number. For more information visit E-Verify website.

Employer Completes Section 2

Employers must examine an employee’s documents evidencing identity and employment eligibility and complete section 2 of the Form I-9 within three business days of the employee’s first day of work for pay. If you hire a person for fewer than three business days, both sections 1 and 2 of the Form I-9 must be fully completed no later than the first day of work for pay.

The employee must be allowed to choose which document to present from the lists of acceptable documents found on the last page of the Form I-9. You must examine one document from List A or a combination of one from List B and one from List C. You must examine the original document(s) the employee presents and then fully complete section 2 of the Form I-9. Follow the specific instructions for section 2. For more information, see “Validity of Documents,” below.

If you choose to make copies of documents provided by employees, do so for all employees, regardless of national origin or citizenship status.

All documents used for Form I-9 verification must be unexpired. However, in some instances, a document that appears expired may be extended and acceptable to use. See USCIS I-9 Central website for examples.

According to the USCIS, employers may designate an authorized representative, including personnel officers, foremen, agents or notaries public, to fill out Forms I-9 on behalf of their company. If you designate someone else to fill out a Form I-9 on your behalf, that individual must

carry out all responsibilities for completing and signing the Form I-9, section 2. The employer is still liable for any violations in connection with the verification process. If you have remote hires, you may use an authorized representative to complete the Form I-9 process.

If you use a notary public to complete the Form I-9, the notary public is acting as your authorized representative and not as a notary. The notary public must perform the same required actions as an authorized representative, and should not provide a notary seal on the Form I-9.

In California, only notaries registered by the California Secretary of State and bonded as immigration consultants under the Business and Professions Code may assist someone in performing the verification tasks in connection with completing a Form I-9. Completion of the Form I-9 by someone who is a notary and not also an immigration consultant is prohibited. Make sure any notary you use is a qualified agent.

Remember that section 2 requires the employer or authorized representative to physically examine, with the employee physically present, each document presented to determine if it reasonably appears to be genuine. The person who examines the documents must be the same person who completes and signs section 2.

COVID-19: In-Person Form I-9 Document Inspection Deferred

Due to employers and employees taking physical proximity precautions due to COVID-19, the Department of Homeland Security (DHS) announced in March 2020 that it would defer physical presence requirements associated with Form I-9 document inspection for employers and workplaces operating remotely. These employers must, however, inspect the section 2 documents remotely (via video link, fax, email, etc.), and obtain, inspect and retain copies of the documents within three business days.

Employers may implement these provisions for a period of 60 days from the latest notice’s extension or within three business days after the national emergency ends, whichever comes first. Throughout 2021, DHS extended these provisions several times. On May 1, 2022, they were extended through October 31, 2022.

The DHS deferment guidance stated that once the deferment expires, employers must physically inspect the documents within three business days of returning to the worksite. After physical inspection takes place, employers should enter “COVID-19” as the reason for the physical inspection delay in the Form I-9 section 2 “Additional Information” field, as well as “documents physically examined” with the date of inspection (this may instead be added to section 3 as appropriate).

Employers electing this option must provide written documentation of their remote onboarding and telework policy for each employee, and any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

Employers using this deferment must have their entire workforce working remotely. For workplaces not operating entirely in a remote capacity, no in-person Form I-9 document verification exceptions are being implemented at this time. However, employers also may designate an authorized representative to act on their behalf to complete section 2, if necessary.

For extension updates and information on when normal operations will resume, employers must monitor the DHS website.

Documents in Lists A, B and C

Employees may present you with documents that prove:

Both identity and employment authorization (List A);
Identity only (List B); or
Employment authorization only (List C).

You must physically examine either:

One document from List A; or
A combination of one document from List B and one document from List C.

The last page of the Form I-9 identifies the specific documents that may be presented from Lists A, B and C.

Illustrations of many of the documents can be found on the USCIS I-9 Central website.

Employers should refer to the Form I-9 to determine if documents the individual is presenting are acceptable. Employers with questions should consult USCIS or an employment or immigration attorney. You can also use the I-9 – Employment Eligibility Verification – Instructions.

Acceptable documents are grouped into three categories:

List A contains documents that show both identity and employment authorization. If an employee presents a List A document, do not ask for any other documents.
List B documents show identity only. An employee presenting a List B document must also present a List C document.
List C documents show employment authorization only. An employee presenting a List C document must also present a List B document.

For information on California driver’s licenses and the Form I-9 process, see “California Drivers’ Licenses,” below.

Receipts

Sometimes to complete Form I-9 ’s section 2 or section 3 (reverification), an employee may need to present an acceptable receipt that’s valid for a short period of time in lieu of a List A, List B or List C document. Presenting a receipt only temporarily satisfies the requirements of section 2. See section 2 of the I-9 – Employment Eligibility Verification – Instructions for an explanation of when a receipt can be acceptable and how to record it on the Form I-9.

There are only 3 types of acceptable receipts:

A receipt showing that your employee has applied to replace a document that was lost, stolen or damaged;
The arrival portion of Form I-94/I-94A (Arrival-Departure Record) with a temporary Form I-551 stamp and a photograph of the individual;
Departure portion of Form I-94/I-94A with a refugee admission stamp or computer-generated printout of Form I-94 with admission code “RE.”

When your employee provides an acceptable receipt for initial verification, USCIS says you should:

Record the document title in section 2 under List A, List B or List C, as applicable.
Enter the word “receipt,” the document title and number and the last day the receipt is valid.

After the receipt expires, you should:

Cross out the word “receipt” and any accompanying document number.
Record the number and other required document information from the actual document presented.
Initial and date the change.

Employers cannot accept receipts if employment will last less than three business days.

Validity of Documents

According to the USCIS, you must accept any documents from the USCIS lists of acceptable documents (found on the last page of the Form I-9 ) as long as they:

Are unexpired;
Reasonably appear to be genuine; and
Relate to the person presenting them.

If these criteria are met, you comply with the verification requirements for document examination. You are not required to further investigate these documents.

If you knew, should have known or have reason to know that the employee was not authorized to work or that the documents are false, you will be held liable. USCIS regulations define “knowing” as:

“… including not only actual knowledge, but also constructive knowledge … knowledge which may fairly be inferred through notice of certain facts and certain circumstances which would lead a person, through the exercise of reasonable care, to know about certain conditions.”

Employers cannot specify which document(s) they will accept for verification, as long as they are on the lists of acceptable documents.

Employees may choose which document(s) they wish to present from the lists of acceptable documents.

Document Abuse

The Immigration and Nationality Act’s anti-discrimination protections prohibit unfair documentation practices during the Form I-9 process.

These practices, also known as document abuse, occur when employers treat individuals differently on the basis of national origin or citizenship status in the Form I-9 process, according to the USCIS Handbook for Employers, Guidance for Completing the Form I-9 (M-2740). Document abuse can be broadly categorized into four types of conduct:

Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
Improperly rejecting documents that reasonably appear to be genuine and relate to the employee presenting them; and
Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents the employer doesn’t require other employees to present.

California law also prohibits employers from:

Asking for more or different documentation than is required by the Form I-9.
Refusing to accept documents that reasonably appear genuine on their face.
Refusing to honor documents or work authorization based on the specific status (or terms of status) that accompanies the authorization to work, such as refusing to accept an employment authorization document because it has a future expiration date.
Attempting to reinvestigate or reverify an existing employee’s authorization to work using an unfair immigration-related practice or in a manner prohibited by federal law, such as reverifying a worker’s authorization after valid documents were presented at the time of hire and the documents are unexpired.

Violators can be subject to a penalty of up to $10,000 per violation under California law, in addition to federal penalties.

California also protects workers against “unfair immigration practices” taken in retaliation for a worker exercising rights protected under the California Labor Code. Retaliation includes unfair documentation practices. For more information see ”Unfair Immigration-Related Practices” in Immigrant Workers and Discrimination/Retaliation Protection.

In addition, California employers may not discharge an employee or in any manner discriminate, retaliate or take any adverse action against any employees who update or attempt to update their personal information based on a lawful change of name, Social Security number or federal employment authorization document.

Workers in California are entitled to California’s Labor Code protections regardless of whether they’re legally authorized to work in the United States. If you hire unauthorized employees, you must pay them and follow state labor laws.

California Driver’s Licenses

The California Department of Motor Vehicles (DMV) is required to issue a driver’s license to an undocumented person who can prove identity and California residency and meet all other licensing requirements, such as the written and behind-the-wheel exams. These are commonly referred to as “AB 60 licenses,” after the legislation authorizing their issuance.

The Vehicle Code states that this driver’s license will include a recognizable feature on its front, such as the letters “DP” instead of “DL.” The license will also contain the following notice: “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.”

DMV regulations set forth the documents a driver’s license applicant must provide to prove identity and residence and obtain a license. Visit the DMV website for more information.

You may not discriminate against individuals who hold or present a license issued under AB 60. Both the Vehicle Code and the Government Code provide that it’s a violation of the state’s Fair Employment and Housing Act (FEHA) for an employer to discriminate against an individual because he/she has an AB 60 driver’s license. In fact, it will be considered national origin discrimination under FEHA. For more information see Immigrant Workers and Discrimination/Retaliation Protection.

For employers who hire commercial drivers, AB 60 states that its provisions do not authorize individuals to apply for, or be issued, commercial driver’s licenses without submitting their Social Security number with the application.

Use of California Driver’s License for Form I-9 Purposes

California driver’s licenses, including AB 60 driver’s licenses, are an acceptable List B document for showing identity only. For more information, see ”Documents in List A, B, or C” on this page. Also see the I-9 – Employment Eligibility Verification – Instructions.

A driver’s license (regular or AB 60 license) does not alone establish authorization to work; it only establishes identity (List B). The worker must also present an acceptable, unexpired document from List C to establish employment authorization.

While you cannot discriminate against someone holding or presenting an AB 60 license, the law recognizes that employers have the right and obligation to obtain documentation evidencing identity and authorization for employment. Actions taken by an employer that are required to comply with federal I-9 verification requirements under the Immigration and Nationality Act (INA) don’t violate California law.

A worker with an AB 60 license may have documents to verify employment eligibility and complete the I-9 requirements. If the employee can provide such documentation, you cannot discriminate against the worker just because at some point the worker showed you an AB 60 license. Consult legal counsel with any questions.

In an FAQ addressing the use of the California AB 60 license during the I-9 process, the USCIS confirmed that employers must accept AB 60 licenses presented by individuals as List B documents, as long as the license appears to be genuine, relates to the individual and otherwise meets Form I-9 requirements.

You can view this FAQ, and others from the USCIS website.

Employers with questions regarding AB 60’s impact on their workforce and I-9 compliance should consult an immigration and/or employment attorney.

Employers should also be aware of restrictions on an employer’s ability to require a person to present a California driver’s license. For more information see “Requesting a Drivers’ License” in Employee Identification.

Compliance with these different laws can be challenging. There are unanswered questions regarding the implementation of AB 60 and any potential conflicts with federal law.

Retaining Form I-9 Records

You must retain Form I-9 records for as long as you employ the individual. Once the individual’s employment terminates, you must retain the form for at least three years from the date of hire or one year from the date of termination, whichever is longer. If copies of documentation presented by the employee are made, those copies must also be retained.

Keep the I-9 – Employment Eligibility Verification and supporting documents in a safe, secure location separate from the employee’s personnel file. One approach is to keep one set of binders of I-9 s for all active employees and one set of binders for non-active employees. The information should only be used for Form I-9 purposes.

• Don’t retain incomplete forms as it may subject you to fines and penalties. Use the I-9 Retention form to determine how long to keep employees’ completed Form I-9.

You must make these documents available for USCIS inspection within three days of a request for lawful inspection. You face civil penalties for violating these record-keeping requirements, ranging from $230 to $2,292 for each infraction.