What is an I-9 Form? HR’s Guide to I-9 Compliance [2023 Update]

Do you find yourself lost amidst the changing requirements and complexities of Form I-9? In this comprehensive guide, we'll address all your burning questions about verifying employment eligibility and provide you with the clarity you've been seeking.

Updated for 2023, this guide includes the latest information, including important updates on topics like the deadline to conduct in-person verifications of employment documents that were previously inspected virtually. We want to ensure that you have the most up-to-date knowledge to navigate the ever-evolving landscape of the I-9 form.

We'll delve into the core elements of the I-9 form, decipher the document, and answer questions like:

• What is an I-9 form?

• What documents do I need to verify employment eligibility?

• What is E-Verify, and how do I do an E-Verify check?

• How do I verify employment eligibility documents for a remote employee?

• How can I prevent discrimination during the employment verification process?

• And more!

Check out our compliance guide to learn about more about the I-9 and other HR compliance issues.

What is an I-9 Form?

The I-9 form is used by employers to “verify the identity and employment authorization” of employees in the United States. Workers must enter information about their identity and submit documentation that proves and supports their employment eligibility. The employee must complete section one of the form, while the employer must fill out sections two and three. Click here to review the latest minor updates made to the form and instructions, approved by the Office of Management and Budget on October 21, 2019, with published guidance on January 31, 2022, by the USCIS.

What are the I-9 Form Requirements?

Both employees and employers must fill out the I-9 form after the hiring process has been completed. Requirements for employees and employers are as follows:

• Employers must have an I-9 on file for each eligible employee.

• Employees must complete section one of the form no later than the first day of employment. This section should not be completed before a job offer has been accepted.

• Employers must complete section two of the form within three days of the employee’s first day of employment. If the employee is hired for a period shorter than three days, section two must be completed no later than the first day of employment.

Edition Requirements

Employers and employees may use the 10/31/2022 form edition – found here until additional guidance is released. The edition date is printed at the top of the form.

Spanish Version Requirements

Only employers and employees in Puerto Rico are permitted to complete the Spanish version of the I-9 form. Individuals from all other 50 states and U.S. territories must submit the English version of the form.

Who is Required to Fill Out an I-9 Form?

The I-9 is only required for new employees, rehires, or those requiring re-verification. Existing employees who have completed valid I-9s are not required to resubmit the form simply due to the recent revisions.

Only those classified as employees are required to complete an I-9 form. It is easier to understand who is required to complete the I-9 form by outlining who is exempt.

For example, the following individuals are not required to complete an I-9:

• Individuals employed for casual, domestic work. The work must be based in a private home and on a “sporadic, irregular, or intermittent basis.”

• Independent contractors or individuals employed by a contractor providing contract services, such as temping agencies.

• Individuals not physically working in the United States.

Employees hired on or before November 6, 1986, are not required to complete the form. In addition, employees based in the Commonwealth of the Northern Mariana Islands (CNMI) are not required to complete the form if they were hired on or before November 27, 2009.

How Do I Send an I-9 Form to My Employee?

There are three common methods for requesting an I-9 from an employee:

Option 1: Send an I-9 Digitally, For Free!

GoCo recently introduced a free tool to send I-9 forms to employees and collect digital signatures online. In addition, the service includes compliance tools for verifying that forms are filled out correctly.

Option 2: Manually Print and Sign the Form

Provide a printed paper copy for the employee to sign. The new I-9 forms are available for download via the USCIS website.

Option 3: Pay For an e-Signature Solution

If you have an e-signature solution in place, you can upload and send I-9 forms for a fee.

What Documents Do I Need to Verify Employment Eligibility?

Employees must submit documents that prove their identity and authorization to work in the United States. Depending on their eligibility, employees may submit one document from List A or a combination of documents from Lists B and C.

List A Documents

These establish both identity and employment eligibility. Therefore, supplementary documents from List B or C are not required.

1. U.S. Passport or U.S. Passport Card

2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)

3. Employment Authorization Document Card (Form I-766)

4. Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record and containing an endorsement to work

5. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A

6. Foreign passport containing a Form I-551 stamp or Form I-551 printed notation

List B Documents

These only establish identity. Therefore, documents that establish employment eligibility from List C must also be submitted.

1. Driver’s License or Identification Card. The card must be issued by a state or outlying territory of the United States and contain a photograph or information such as name, date of birth, gender, height, eye color, and address. Examples of acceptable cards are as follows:

1. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address.

2. School ID card

3. Military ID card

4. U.S. Coast Guard Merchant Mariner Card

5. Native American tribal document

6. Voter registration card

7. Canadian driver’s license

1. ID cards for minors under the age of 18 unable to present one of the above cards.

1. School record or report card

2. Clinic, doctor, or hospital record

3. Daycare or nursery school record

List C Documents

These only establish employment eligibility. Therefore, documents that establish identity from List B must also be submitted.

1. U.S. Social Security account number card that is unrestricted

2. Consular Report of Birth Abroad (Form FS-240)

3. Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545)

4. Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350)

5. Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying territory of the United States bearing an official seal

6. Native American tribal document

7. U.S. Citizen ID Card (Form I-197)

8. Identification Card for Use of Resident Citizen in the United States (Form I-179)

9. Employment authorization document issued by the Department of Homeland Security (DHS)

Expired Documents

Employees must present valid, original, and unexpired documents to employers. If an employee does not yet have the original copy of a newly ordered document, they may present an official receipt instead. Visit the USCIS website for more details on acceptable receipts.

Can I virtually inspect employment eligibility documents for a remote employee?

On October 11, 2022, the Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) announced an extension for employers to comply with Form I-9, Employment Eligibility Verification. This extension is effective November 1, 2022 (after the previous extension expired on October 31, 2022) and piggybacks on the initial March 2020, March 2021, and December 2021 extensions and updates.

However, ICE has now issued a notice regarding the firm end date for the COVID-related I-9 verification flexibility. Employers that took advantage of the COVID-19-related virtual verification will have until August 30, 2023, to do in-person verification of employment documents that were inspected virtually. This means that employers can no longer rely on visual inspection or any other remote method to complete the I-9 form for hires that have been working remotely due to the pandemic.

While this deadline has been extended several times in the past, ICE now says that the deadline is firm. The agency has created a set of Frequently Asked Questions and instructions for properly annotating the Form I-9 during an in-person inspection following its initial virtual inspection.

So, what does this mean for HR pros, and what is the next course of action?

Firstly, it is crucial to keep a list of those employees whose documents were inspected virtually. This will enable you to identify which employees need to undergo an in-person verification process. If you don't have such a list, you will need to look through your records and build one before proceeding.

Secondly, designate an authorized representative who will be responsible for inspecting documents in person. The representative should be someone you trust, who can pay attention to detail, and who can follow your verification process method.

Thirdly, consider having an HR team member oversee in-person inspections remotely (via phone call or video) to ensure a consistent process is followed. This HR team member should also be available to address any questions or concerns that may arise from the employee or authorized representative.

It is also important to ensure that the Form I-9 is filled out correctly and accurately. To avoid any legal violations, it is essential to choose a reliable authorized representative and to provide them with detailed training on how you want the verification process to be carried out and how to document it appropriately.

Lastly, it is possible to save money and time on travel expenses for in-person inspections by designating different authorized representatives for different regions. Alternatively, outsourcing the role of an authorized representative to a law firm or notary who can legally provide this service is another viable option.

Failing to comply with I-9 requirements can lead to significant fines, so it's crucial that employers comply with the upcoming August 30th deadline for this in-person verification requirement.

Employers must not underestimate the impact of this deadline and should begin planning now for the upcoming changes. Stay on top of the documentation required and ensure compliance with the I-9 requirements to avoid setbacks that could potentially harm your business in the future.

What is E-Verify, and How Do I Do an E-Verify Check?

The E-Verify system helps employers confirm an employee’s employment status by matching the information provided against Department of Homeland Security (DHS) and Social Security Administration (SSA) records. For most employers, it is voluntary. However, certain employers are required to use it, such as federal contractors, those in states that mandate it, and those who have been ordered in a legal ruling to do so. In addition, once an E-Verify account has been opened, employers must use the system for all new employees.

Note: Employers must retain copies of any documents that require photo matching, such as a passport or driver’s license.

How Do I Verify Employment Eligibility?

Employers are required to verify the submitted documents by determining whether they “reasonably appear to be genuine.” If a document does not appear to be valid, an employer can reject it and ask for valid alternatives.

Reverification

Employers can reverify an employee’s status by completing section three on the form. This section must be completed if the employment authorization or employment authorization documents have expired. Employers may—but are not required to—complete section three if the employee has been rehired within three years of the first I-9 being completed or legally changed their name during this time. Visit the USCIS website for more details on reverification.

Employers may request an authorized individual, such as a “personnel officer, foreman, agent, or notary public” to complete section two or three on behalf of the company. No official documentation is needed to allocate an authorized person. However, the employer is liable for any errors or illegal actions taken by the authorized individual during the verification process. In all cases, the individual reviewing the employee’s employment verification documents must do so in person and be the same individual who completes the form.

In California, the authorized representative must be certified and bonded as an immigration consultant to verify I-9 documents. This also applies to notary publics.

How Can I Prevent Discrimination During the Employment Verification Process?

The Immigration and Nationality Act prohibits employers from discriminating against an employee during the hiring, firing, or verification process based on citizenship, immigration status, or nation of origin. Therefore, in compliance with the law, employers cannot:

• Ask to see employment authorization documents before a job offer has been accepted;

• Refuse to accept documents or hire individuals because their employment authorization will expire in the future;

• Refuse an acceptable receipt of an authorized document; or

• Request or suggest specific documents from the employee.

If an employee experiences discrimination, they can file a claim with the Immigrant and Employee Rights Section (IER). Employers cannot retaliate if an employee files a charge, participates in an investigation, or attests to their rights. Visit the USCIS website for more details on the laws surrounding employment discrimination.

What Are My Ongoing Responsibilities For Ensuring I-9 Compliance?

Employers must comply with the rules outlined by the USCIS when retaining, storing, and updating I-9 forms. Employers must meet the following responsibilities:

• Retaining – Employers must retain valid I-9 forms for all eligible employees for three years or one year after employment has terminated, whichever is later. Only the part of the form containing the employee and employer data must be kept.

• Storing – Forms can be stored on paper, microfilm, microfiche, or electronically. Forms must be made available to the Department of Homeland Security, Department of Labor, or Department of Justice within three days of a request.

• Updating – It is the employer’s responsibility to keep track of expiration dates and reverify an employee if required. The employer must initial and date any corrections made to the form.

Employers who fail to maintain valid I-9 forms or illegally discriminate against new hires may be subject to fines, debarment, court orders, and criminal penalties.

Previous Updates

On January 31, 2020, the United States Citizens and Immigration Services (USCIS) released an updated version of Form I-9, Employment Eligibility Verification, which expired on October 31, 2022. Employers should continue using the October 31, 2022, version until new guidance is released.

The USCIS website has a full list of FAQs for employees and employers completing the I-9 form.