All U.S. employers have legal obligations to ensure that their employees have the legal right to work in the U.S. This legal right is enjoyed by (1) U.S. citizens (either natural born or naturalized) and (2) foreign nationals who have been expressly given a right to work in the U.S. through the U.S. Citizenship and Immigration Services (USCIS). Individuals who are not U.S. citizens might have a legal right to be in the U.S. (for example, they are here on a student visa or tourist visa or other permission, such as to attend the funeral of a family member), but those visas do not necessarily give the individual the legal right to work here. Individual who do not have a right to even be in the U.S. are called “illegal aliens.” They are in the U.S. illegally and in contravention of U.S. laws.
A Form I-9 is the form employers need to complete for all new employees to obtain information about an employee’s identity and to verify his or her authorization to work in the United States.
Parts of Form I-9 are completed by the employee and parts are completed by the employer.
The first section of Form I-9 requires each employee to provide their name, address, date of birth and citizenship or immigration status. Employers are not permitted to ask any employee to complete Form I-9 before the employee has accepted a job offer. Newly hired employees are required to fill in and sign Section 1 of Form I-9 no later than their first day of employment.
The second section of Form I-9 requires the employer to examine certain documents that provide evidence of the employee’s identity and his or her employment authorization. The last page of Form I-9 provides a list of acceptable documents. Employers cannot require an employee to provide specific documents, but must accept any document listed on the Form. Employers must examine the documents provided by the employee, satisfy themselves that the documents are genuine (i.e., that they look genuine and appear to belong to the employee who provided them), and complete Section 2 of Form I-9 within three business days of the employee’s first day of employment.
The third section of Form I-9 is to be completed if the employee’s employment authorization expired and needs to be reverified, or if a former employee is rehired within three years of when the Form I-9 was originally completed.
Employers are required to retain a completed Form I-9 for each employee for as long as the employee works for the employer. Once the employment ends, the employer must retain the completed Form I-9 for three years from the date of hire or one year after the employment ends, whichever is longer. Employers must present a completed Form I-9 for inspection if requested by authorized officials of the United States government.
Forms I-9 should not be retained in an employee’s personnel file because they contain personal information, including whether the individual is a citizen. Best practice is to retain all such forms together in a manner in which individual forms can be found easily. Usually they are filed either by date, or alphabetically by the employee’s last name.