Employers often focus extensively on vetting candidates for suitability for the role they applied to during the hiring process. Screening for serious criminal records, conducting drug tests, and verifying the truth of someone’s claimed credentials are often all critical elements. However, employers cannot afford to overlook employment eligibility verification. With updates made to the Form I-9 process by the US Citizenship and Immigration Service (USCIS) and Department of Homeland Security (DHS) in 2023, it’s a critical time for employers to re-examine their procedures in this area.
For decades, employers in the US have been required to take specific steps to verify that employees are authorized to work in the country. The government created Form I-9 to manage the verification of identity and authorization to work in the US Later, the E-Verify system for electronic status confirmation became available as an optional addition to the employment eligibility verification process, with some employers now being required to use this system.
Although you don’t file Forms I-9 directly with the government, you must keep them on file for all US employees. The government could inspect these files anytime; non-compliance can be costly and damage your company’s reputation. Small business owners must understand these requirements and the resources available for meeting them.
This page breaks down all the essential facts, from why we must verify employment eligibility in the US to completing a Form I-9 as an employer. Good compliance practices can help protect your business and create a smooth onboarding process for all employees. Let’s review how you can begin to get there.
Vetting eligibility to work in the United States
There was not always a time when employers had an obligation to collect employment eligibility information and review identity and employment authorization documents. However, decades ago, legislation changes at the federal level led to the creation of Form I-9. Companies must meet their obligations in this area to avoid fines and other consequences.
Before we dig into the details about satisfying your obligations in this space, we should discuss where these requirements originated and why they matter.
Why is confirming eligibility so important?
Confirming employment eligibility is vital because it keeps your company compliant with legal and regulatory requirements.
The government aims to enforce these provisions through periodic Form I-9 inspections. Employers must have a complete Form I-9 on file for each employee on their payroll who is required to complete the form, with each section completed within the designated timeframe and according to the instructions.
Maintaining non-discrimination best practices during employment eligibility verification
The United States has enshrined non-discrimination as an essential element of the workplace. Maintaining non-discrimination principles at all employment stages is critical, from recruiting and hiring to firing.
Employers are prohibited under federal law from discriminating against people based on several factors. These factors include the individual’s citizenship or immigration status and national origin. As it relates to completing Form I-9, for example, the Form outlines a range of documents that are acceptable to verify identity and work eligibility. You cannot create a different standard for different people based on citizenship, immigration status, or national origin, for example, by requesting additional or specific documents from someone or rejecting documents that reasonably appear genuine and relate to the individual. The USCIS website contains extensive information about unlawful discrimination, including a helpful table of discrimination types, which employers should read carefully.
Key items of employment eligibility legislation to understand
The law in this area has evolved, beginning with the Immigration Reform and Control Act of 1986 (ICRA). The IRCA led to the creation of Form I-9, which prohibits employers from hiring individuals without completing the employment eligibility verification process. The ICRA also prohibits employers from knowingly hiring unauthorized workers and discriminating against individuals based on their national origin and citizenship or immigration status in hiring, firing, recruiting, or referring for a fee.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was another reform that, in part, established the prohibition against discriminatory documentary practices in the employment eligibility verification process. The E-Verify system also began as a pilot program in 1996 under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
The USCIS maintains a page that lists the federal statutes and regulations about the Form I-9 process. Employers are encouraged to review this page for additional details and a complete list of relevant legislation.
The government continues to periodically revise and update Form I-9 and the regulations surrounding it. The UCSIS’ Form I-9 Related News page is a helpful resource for employers to stay on top of updates to avoid missing essential changes or news.
Understanding form I-9 made simple
The purpose of this process should be clear: The government has established that companies must complete Form I-9 for all employees working in the US and were hired on or after Nov. 6, 1986. In addition to Form I-9, the newer digital E-Verify system is an optional addition to the employment eligibility verification process for most employers, although it is required for some. However, it is necessary to note that E-Verify is not a replacement for the Form I-9 process.
Since most employers do not face a requirement to use E-Verify, many—particularly small businesses—may choose to stick with only the traditional Form I-9 process for employment eligibility verification. You can review who must handle these documents, what mistakes to avoid, and a quick guide on filling out the I-9 below:
Who needs to complete Form I-9?
Is the employee the only person who needs to fill out Form I-9? Not exactly. Multiple parties must touch a single form, including the employer.
Employers must complete a Form I-9 for every individual they hire to work in the US There are two critical sections to know, with additional sections that only become necessary in some circumstances:
- Section 1 is for your employee to complete and contains their information and attestation. Your employee must complete this section on their first day of employment.
- Section 2 is for you, the employer, to fill out as part of your document review and the employee’s employment eligibility. You must complete this section within three business days of hiring the individual.
- Supplement A of Form I-9 is necessary if the employee uses the assistance of a Form I-9 preparer or translator.
- Supplement B is for use for reverifications or rehires.
For more information on each section of Form I-9, please see the “Completing Form I-9” section of the USCIS website.
A step-by-step guide to filling out Form I-9
Here is a high-level overview of the basic steps required to complete a Form I-9 for an initial employment verification, where only Sections 1 and 2 are required. Note that each scenario is unique, and this will not account for all of them. For more detailed information, consult the USCIS website and the Handbook for Employers M-274.
Step 1. The employee must complete Section 1 of the form. This section has two parts: a section the employee must fill in with their information and an attestation. In the first part, the employee must provide basic information such as their name, address, date of birth, and citizenship status. Section 1 must be completed no later than the individual’s first day of employment.
Step 2. The employer must complete Section 2. To do so, you must review the documents the employee provides from the Lists of Acceptable Documents. You may create copies of the documents if you wish.
Review the different lists of acceptable documents. List A includes documents that prove identity and eligibility, such as a US Passport. Only one List A item is necessary. Lists B and C verify identity and eligibility separately and respectively. Employees who choose to provide documents from Lists B and C must provide one document from each list.
Step 3. Once you have reviewed the documents and made copies, you must read and sign the attestation in Section 2 if desired. Section 2 must be completed within three business days of the employee’s hire date.
Step 4. Retain the Form I-9. For current employees, you must keep the forms on hand for the entire time they are on your payroll. Maintaining these forms for the designated period after you no longer employ the individual is necessary. For more information and to calculate the time you must retain an employee’s Form I-9, please visit the USCIS site.
Major mistakes to avoid
Always ensure that an employee fully completes their Form I-9 and does not leave out any required information. Do not assume that any provided documents are acceptable, but examine them to determine, to the best of your ability, that they’re genuine and relate to the employee who presented them.
Don’t procrastinate. Do not wait beyond the allotted timeframe for completing the Form I-9.
Beware of actions that might seem discriminatory. Remember that any genuine documents from A or a combination of one from List B and one from List C are acceptable. You cannot demand specific documents from the lists.
Ensure accessibility in your process. The I-9 form comes in English and Spanish. Only employers in Puerto Rico may legally file their Forms I-9 strictly in Spanish. All other US employers must use the English version but may provide the Spanish version as a guide to help employees understand the document and process.
When and how should you re-verify employees?
Sometimes, you will need to re-verify candidates using Supplement B of Form I-9, formerly called “Section 3.” Re-verification is required when an individual’s employment authorization or documentation of employment authorization has expired. For information on completing Supplement B for rehires and re-verifications, please see the USCIS page here.
The E-Verify program
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act required the federal government to conduct pilot programs to identify the best way to verify an employee’s employment eligibility. Initially known as the “Basic Pilot Program,” one of these pilots was renamed “E-Verify” in 2007. E-Verify remains a free web-based system that supports employers’ employment eligibility verification processes.
Some business owners may find the E-Verify process confusing and complex. Let’s unravel the mystery and explore why this solution is a valuable tool, even for employers who aren’t required to use it.
What is E-Verify, and how does it relate to Form I-9?
The E-Verify program, administered by the USCIS and the Social Security Administration, provides an easy way to confirm a candidate’s employment eligibility using the information they provide on their Form I-9. In general, the program is voluntary except where otherwise required. Some public and private employers may be required to use E-Verify under federal or state law or regulation.
E-Verify does not replace Form I-9, nor does it fulfill your obligation to maintain a record of an employee’s Form I-9. Think of it as a supplement to the Form—ensuring you use every tool available to verify your employees’ employment eligibility. Even for employers that don’t face a mandatory requirement to use E-Verify, there are excellent reasons to consider doing so.
The advantages of combining E-Verify and Form I-9
E-Verify is free; results are typically almost instantaneous when submitting a case. Running E-Verify helps add an extra layer of assurance that your employee is authorized to work in the US It provides peace of mind for employers who want added compliance assurance. While you cannot rely on E-Verify to replace your Form I-9 process, it is a robust, reliable service that may provide valuable help to your business.
How to set up and use E-Verify as a small business owner
The process is surprisingly simple if you wish to voluntarily enroll your small business in E-Verify or need to do so to meet requirements. You can complete the process with the correct information in a few simple steps. To get started, you’ll need to have information such as:
- Which hiring sites will use E-Verify
- How many employees you have
- Your NAICS code
- Contact information for specific stakeholders
- Company information, such as legal name and EIN.
Visit the E-Verify website for a full enrollment checklist to help ensure you have all of the information you need to enroll ready before beginning the process.
Next, you can begin the enrollment process. This process has several steps, starting with visiting the enrollment site and accepting the terms of use. At some stages of the process, you will be asked to provide information, such as your employer category, company details, and the number of hiring sites you have that will use E-Verify. You must also register at least one E-Verify administrator and agree to and sign a Memorandum of Understanding. If you are considering enrolling in E-Verify, visit the E-Verify site for a complete list of the steps involved in the enrollment process to ensure you are prepared before you begin.
Once the enrollment process is complete, you’ll be set up and ready to begin running employees through E-Verify.
Common E-Verify myths and misunderstanding
Myth: E-Verify adds expenses to your business.
Reality: This process is free and is often instant. The extra time it takes in the hiring process, as is the cost impact, is typically negligible.
Myth: E-Verify users don’t need to keep Forms I-9 on file.
Reality: Form I-9 is still a requirement even when you use E-Verify. E-Verify can supplement – but not replace – Form I-9 in your US employment eligibility verification process.
Myth: E-Verify is not a business-friendly service.
Reality: E-Verify was designed to be easy for businesses to use. It relies on employee-provided information, offers 24-hour access with only a web browser, and delivers its results instantly. It simplifies fraud detection with photo matching, and online tutorials create a gentle learning curve. When businesses need support, a dedicated team of customer service agents stands by to help.
Employment eligibility verification best practices to know
As a business owner, you will encounter diverse people seeking jobs. The Form I-9 requirements don’t mean you must only hire US citizens. Remember, it is all about verifying identity and authorization to work in the US
Navigating compliance in this space can sometimes prove stressful, but it doesn’t have to be. A clear understanding of your responsibilities and a plan for implementing best practices make a big difference. Here are a few things to know.
Your responsibilities as an employer
You should familiarize yourself with Form I-9 and the List of Acceptable Documents that accompany it. You should also familiarize yourself with the timeframes in which the Form I-9 must be completed and ensure compliance. You do not file Form I-9 directly with the government. Instead, you must keep it on file and ready for review should you be subject to a Form I-9 inspection. For more information on storing Forms I-9, please see the “Retention and Storage” section of the USCIS website.
The USCIS makes a wide range of Form I-9 resources available for employers. Employers must review the Handbook for Employers M-274 and the USCIS’ I-9 Central.
Remember that some employers are required to use E-Verify in addition to Form I-9. It is advisable to review all laws applicable to your business and consult legal counsel to help ensure your organization’s compliance.
What are the penalties for non-compliance?
Falling afoul of the laws and regulations that mandate employment eligibility verification can be very costly to a company’s reputation and finances. There are good reasons to be very strict about enforcing and following your Form I-9 policies and doing so without any trace of discrimination. What can happen if you violate the law? Some of the consequences can include:
- Debarment from, or the total loss of the ability to take government contracts
- Monetary fines
- Court orders to provide back pay or to hire individuals discriminated against in the hiring process
If the government determines your business engaged in a pattern of hiring (or recruiting or referring for a fee) unauthorized non-citizens, there may also be criminal penalties. You can find a complete list of penalties and a schedule of monetary fines on the USCIS Form I-9 penalties page.
Maintaining accurate records and preparing for inspections
Make every effort to ensure that Forms I-9 are correct and complete the first time an employee completes one. You or your authorized representative should fully understand how to complete the employer sections of the document. Once completed, you should securely store the documents in the location designated for your organization.
If you receive notice that you will soon face a Form I-9 inspection, don’t panic. Review the Notice of Inspection and any available government resources, including the Handbook for Employers M-274 Inspection section, to better understand the inspection process. To remain prepared for an inspection consistently, you should consider periodically conducting a self-audit of your Forms I-9.
Always be transparent with your employees about their obligation to complete an accurate Form I-9 during the hiring process. Also, educate staff about their rights and responsibilities and available resources. Demonstrate your commitment to non-discrimination and fair hiring practices by being open with employees about your process and what obligations you must fulfill.
How long does Form I-9 remain valid?
Form I-9 undergoes periodic revisions and changes. When a new version of Form I-9 is released to the public, the old version may become invalid for future use. If this happens, you must begin using the new form for employment eligibility verifications as instructed by USCIS. For more information to ensure you’re using the current version of Form I-9, please visit the USCIS website.
In some cases, you may hire an individual with a temporary work authorization or whose employment authorization documentation expires. In this situation, you must re-verify the employee’s eligibility using Supplement B. When hiring temporarily authorized individuals, keep track of when their documents expire and be ready to ask for updated paperwork. For more information, please see the USCIS page on completing Supplement B.
When and how should you self-audit your Form I-9 compliance?
If you’ve never self-audited your existing Forms I-9 now may be the ideal time to do so–before you experience an actual government inspection. Employers may consider conducting self-audits regularly based on their hiring pace.
Auditing helps you detect common mistakes, such as candidates who skip a box in Section 1 or cases where you did not fully complete Section 2 as the employer. You do have the opportunity to correct these mistakes
if you find them. For information on the process for correcting errors identified on a Form I-9, please review the USCIS page on Self-Audits and Correcting Mistakes.
A periodic self-audit and error correction process can help ensure you remain compliant and readily accommodate the government taking a closer look.
Navigating today’s challenges in this Space
The landscape of how we work has undergone significant changes in recent years, which continue to create many challenges for small business owners. Those difficulties are apparent in the Form I-9 process, where issues such as remote work can develop roadblocks you’ll need to navigate.
Let’s unpack a couple of possible difficulties and explore how you can strategize solutions that make a difference.
Watch out for these Form I-9 and E-Verify pitfalls
There are numerous challenges brought on by the complexities of the shifting landscape in this process facing employers today. What are some of the substantial challenges you should know about today?
Completing the Form I-9 for remote employees is one potential area of trouble. Many companies have begun using employees who work from home or do not reside in the same locale as the office. Now that the COVID-19 temporary flexibility related to remote document examination have expired, how can employers continue to use remote workers?
If feasible, you may still ask your remote workers to visit the office to complete the form in person. However, a new Form I-9 format and associated DHS-authorized alternative procedure issued in 2023 offer an additional option for some employers. Under the alternative method, you can continue conducting remote document examination if your business participates in and is in good standing with E-Verify.
The USCIS has dedicated a webpage to these newly authorized procedures for remote examination of documents. Employers considering implementing a remote examination procedure are encouraged to review this page and the alternative method published in the Federal Register to determine whether they are eligible and understand the required process.
What are some other common problems?
Incomplete information is a persistent problem for many employers. An employee might forget to enter accurate name information, date of birth, or address. Employees might forget to sign the document. Similarly, employers might leave out important information in their section. Inspecting the form before storage, if using a physical document, helps you spot these issues early and make corrections. An electronic I-9 process that won’t allow submission without complete information can also eliminate this concern.
Employees might not complete the form by the appointed deadline, the first work day. Employers should develop procedures to collect this information quickly after a candidate accepts an offer and begins onboarding. When possible, don’t commence an individual’s employment until you’ve completed all the necessary paperwork.
Finding official government support and guidance
Confused? The Form I-9 process can seem daunting or overly complicated. The good news is that there are plenty of resources you can use to understand your next steps at any stage. Likewise, consulting with legal counsel who clearly understands this area can be valuable in helping you craft your policies.
The USCIS provides an I-9 help center to help you make sense of the problems you may encounter. The Handbook for Employers M-274 also contains valuable information that all employers are encouraged to review. Available Monday through Friday, you can contact the USCIS for support by phone or email. Visit their official website for more information.
The E-Verify website also has many resources, including guidance on enrolling and insights into the verification process. You can also review an in-depth FAQ with answers to many common concerns.
Further reading and your next steps
The US government provides a wealth of online information to help your organization meet their employment eligibility verification requirements. Some of the most valuable resources include:
- The USCIS I-9 Central: a one-stop shop for virtually everything you need to know about Form I-9, the process, and the tricky nuances. · The M-274 Handbook for Employers. · E-Verify’s employer resources: help explain the service, its benefits, and how you can sign up. · E-Verify’s employee resource guide: explains the employee experience. You can offer this to individuals as an educational resource. · The EAD Extension Calculator: useful to understand your compliance requirements when a non-citizen is in the process of renewing their authorization. · US government webinars on employment eligibility and compliance concerns: use these to quickly develop an understanding of Form I-9, employee rights, and other critical information.
Form I-9 compliance can be a confusing process despite the seemingly simple purpose of the form. Add in the challenges of the trend towards making more work remote, and up-to-date information and a well-documented process are required. Laws and regulations in this area can change, and an employer must ensure their compliance. However, that doesn’t mean you must go through this effort alone. Employers are encouraged to consult legal counsel to help guide them through the employment eligibility verification process and ensure they comply with the laws and regulations that apply to them.
Integrating E-Verify into your hiring workflow and adopting a convenient electronic I-9 process is simpler with help from backgroundchecks.com. Though our focus is typically on streamlining pre-employment vetting processes, we also provide a web-based I-9 creation and storage solution via a trusted third-party contractor. Enjoy rapid insight and oversight into the status of employee forms I-9 in an easy-to-use dashboard and easily create E-Verify cases.
Use the USCIS I-9 Center to understand and review your obligations, then explore solutions that empower you to collect this vital information.
