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New Concerns About Immigration Procedures Merit Review of I-9 Requirements

By William J. Manning
  • May 22, 2002

While the substantive requirements of the Form I-9 employment authorization verification system have not changed since September 11, 2001, the INS has conducted I-9 inspections of certain employers in vulnerable industries. For example, the INS district offices in California have inspected the I-9 files of all employers engaged in air transportation. In light of this new trend, a brief review of the basic I-9 requirements may be useful.

Since November 6, 1986, all U.S. employers have been required to verify whether their employees are authorized to work in the United States (per Section 274A-274C of the Immigration and Naturalization Act). This verification is performed by requiring all new hires to complete Form I-9 and present documentation confirming their identity and authorization to work in the U.S.

Section 1 of Form I-9, on which the employee states whether he or she is a U.S. citizen, permanent resident or alien authorized to work, must be completed and signed on the first day the employee reports for work. Section 2 of the form, on which the employer records which documents were presented by the employee to evidence his or her status, must be completed within three days of the employee commencing work. Both the U.S. Department of Labor and the U.S. Immigration and Naturalization Service inspect employers to ensure compliance with the I-9 requirements. Penalties for record keeping violations range from $110 to $1,100 per occurrence. Penalties for knowingly employing an unauthorized alien range from $275 to $11,000 per violation. Criminal penalties of up to $3,000 in fines and imprisonment of up to six months are possible where a "pattern or practice" of knowingly employing unauthorized workers is demonstrated.

It should be kept in mind that the I-9 requirements represent a compromise between the members of Congress desiring to eliminate the employment of unauthorized aliens and those intent upon preventing discrimination on the basis of citizenship and national origin. As a result, employers may be penalized if they engage in activities, such as demanding specific documents or more documents than required by the I-9, which could have a disparate impact upon one of the protected classes of job applicants. An employer which demands more documents than the law requires or rejects documents that "on their face appear to be genuine" may be subject to civil penalties ranging from $110 to $1,100 per individual discriminated against. Employers found to have engaged in unfair immigration-related practices (each a"UIREP") may be subject to penalties ranging from $275 to $11,000 for each individual discriminated against. UIREPs include refusing to hire or discharging a protected individual because of national origin or citizenship, and requesting specific documents or rejecting apparently valid documents during employment eligibility verification for the purpose, or with the intent, of discriminating on the basis of citizenship or national origin.

The following are some points to keep in mind when completing Form I-9:

  1. An applicant should not be asked to complete Form I-9 prior to the offer of employment. Form I-9 provides information on citizenship, national origin and visa status which could serve as a basis for a claim of discrimination if the applicant is not hired.
  2. Section 1 of Form I-9 must be completed and signed by the employee on the date the employee commences work. Any translator or person preparing Section 1 for the employee must also sign the form.
  3. The employer should immediately review Section 1 to make sure that it was properly completed and that the employee makes any necessary corrections.
  4. When it reviews the documents provided by the employee for Section 2, the employer should review the information provided in Section 1 against the documents produced by the employee for consistency. The employee should be given an opportunity to correct Section 1 if there is a discrepancy. The employer is not expected to be an immigration expert but should have a sufficient understanding of the immigration system to know whether a proffered document is consistent with an employee's claimed status.
  5. Do not ask for any document to substantiate the information in Section 1. 
  6. Section 2 of the form must be completed within three business days of the commencement of employment.
  7. A Form I-9 should be completed for every employee and for each independent contractor who could be perceived as being the equivalent of an employee. The burden of I-9 compliance can be shifted by contract to an entity providing individual contractors. A Form I-9 does not need to be completed for truly independent contractors, e.g. contractors who spend only a few hundred hours per year working for the employer and who work off-site.
  8. Do not ask for any particular document for Section 2. The employee should be given a Form I-9 (see copy attached) and asked to provide either one document on List A or one document on each of Lists B and C.
  9. The employer should accept any document specified on Form I-9, provided that it appears genuine and relates to the employee.
  10. Do not ask for an INS document to confirm the expiry date of work authorization.
  11. Do not consider the expiration date of work authorization in making the hiring decision.
  12. Review the documents that are provided to make sure that they are on list of approved documents for Section 2.
  13. The employer is not required to be a document expert. The INS Handbook does not contain every variation of every document that can be submitted. If a document is one of the approved documents, and does not appear to have been tampered with or to be forged, the employer should accept it.
  14. The employer is not required to make copies of the documents which are produced for Section 2. While there are certain advantages to not making copies of these documents, on balance it seems preferable to make copies and keep them paper-clipped to the I-9. Retaining a copy of the documents tends to negate the inference that the documents produced were obvious forgeries and permits errors in completing the I-9 to be remedied during an audit. If copies are made, they must be retained and attached to the relevant Form I-9.
  15. Be particularly careful when an employee shows you a filing receipt instead of an actual document. There are four situations in which a filing receipt is acceptable: (a) the filing receipt indicates that the employee has applied for a replacement List A, B, or C document because the original was lost, stolen or damaged (the actual document must be submitted within 90 days after the date of hire); (b) the filing receipt is a temporary I-551 stamp (green card) in the employee's passport or on a Form I-94 (the actual Form I-551 must be submitted within 180 days following the date of hire); (c) the filing receipt takes the form of a refugee admission stamp on a Form I-94 (an employment authorization card, Form I-766, or a social security card must be submitted within 90 days after the date of hire); or (d) the filing receipt is for an application to renew an H, L, E, O or P visa with the same employer (the INS approval notice or new visa and Form I-94 must be submitted within 240 days after expiration of the present period of authorized stay). This is a tricky area (for example, certain Haitians were granted an automatic one year extension of their employment authorization documents in December 1998). You should contact your lawyer if you have any doubts about the validity or acceptability of the documents submitted to you.
  16. Keep a tickler file for I-9s showing that employment authorization will expire at a certain date. The employee should be reminded of the need to renew his or her employment authorization at least 90 days prior to expiration of the current employment authorization. Given INS delays in producing Employment Authorization Documents, it would be wise to give employees even more advanced notice of the impending expiration of their documents.
  17. Follow the same I-9 procedures for all employees.
  18. Remember that the employer must retain the I-9 for the longer of three years from the date of hire or one year after termination of the employment relationship. A safer way of implementing this requirement is to keep Form I-9 for at least three years after the termination of employment. Keep in mind that the employer must have an I-9 on file for all current employees other than employees hired prior to November 6, 1986. Disposing of Form I-9s which are no longer legally required to be kept frees the employer of potential liability for errors made in completing those forms.

In February 1998, the INS published a proposed rule which would reduce the number of types of documents that can be submitted in connection with Section 2 of Form I-9 from 25 to 13. The following charts show the documents that are currently acceptable, as well as the documents which would be deleted if the proposed rule is adopted. INS has indicated that employers may continue to accept all the documents listed on the back of the current version of Form I-9 until a new version of Form I-9 is released, notwithstanding the fact that a regulatory amendment in 1997 deleted certain of the List A documents.

Proposed List A (Documents that establish both identity and employment eligibility)

  • United States Passport
  • Permanent Resident Card or Alien Registration Receipt Card (I-551)
  • Temporary Resident Card (I-688)
  • Employment Authorization Document (I-766, I-688B, or I-688A)
  • Foreign Passport with temporary I-551 stamp
  • For aliens authorized to work only for a specific employer, Foreign Passport with Form I-94 authorizing employment with this employer


List A documents already eliminated by the interim rule adopted on September 30, 1997:

  • Certificate of United States Citizenship, Form N-560 or N-561
  • Certificate of Naturalization, Form N-550 or N-570
  • Re-entry Permit, Form I-327
  • Refugee Travel Document, Form I-571

Proposed List B (Documents that establish identity only)

  • Driver's license issued by a state or outlying possession
  • ID card issued by a state or outlying possession
  • Native American tribal document
  • Canadian driver's license or ID card with a photograph (for Canadian aliens authorized to work only for a specific employer)


Current List B documents proposed to be eliminated:

  • Ientification card issued by federal or local authorities
  • School identification card with a photograph
  • Voter's Registration Card
  • United States military card or draft record
  • Military dependent's identification card
  • United States Coast Guard Merchant Mariner Card
  • School record or report card, daycare or nursery school record, or clinic doctor or hospital record (for individuals under age 18 who are unable to produce an identity document)

Proposed List C (Documents that establish employment eligibility only)

  • Social Security account number card without employment restrictions
  • Native American tribal document
  • Form I-94 authorizing employment with this employer (for aliens authorized to work only for a specific employer)


Current List C Documents proposed to be eliminated:

  • Certification of Birth Abroad issued by the Department of State, Form FS-545 or Form DS-1350
  • Birth certificate issued by a State, county, municipal authority or outlying possession of the United States bearing an official seal
  • United States Citizen Identification Card, INS Form I-197
  • Identification card for use of a resident citizen in the United States, INS Form I-179
  • Employment authorization documents issued by INS other than those listed under List A

It was originally expected that the new rule would become effective in October 1998. Due to continuing debates about a possible national identity card and standardized driver's licenses, INS has been unable to finalize the new regulation. When the final rule is issued, it will be accompanied by a revised version of Form I-9, as well as by a revised INS I-9 Handbook for Employers (M-274), and, most likely, a new Form I-9A for reverification of employment authorization.

Editor's Note: This article was prepared by the Immigration Practice Group of Jackson Lewis. It is provided for informational purposes only. It is not intended to be legal advice. Readers should consult with counsel to discuss particular issues or problems. Please contact the Jackson Lewis Immigration Practice Group.

©2002 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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