I-9 Frequently Asked Questions

1.  Who needs a completed I-9 Form?
By law, all employers are required to complete and retain an I-9 Employment Eligibility Verification Form for all employees (including U.S. citizens and non-citizens) hired to work in the United States after November 6, 1986.

2. When should the I-9 Form be completed?
New employees must complete Section 1 of the I-9 no later than the close of business on their first day of work.  The employer must complete Section 2 of the I-9 no later than the employee’s third day of employment (i.e., within three business days of the date employment begins).  The Form I-9 can be completed before employment begins, if it is completed for all new hires at the same point in the employment process.

3. The employee presents a document that is not on the list. How should you respond?
Notify the employee that the document is not on the list.  Hand the employee the list of accepted documents and ask the employee for a document from that list.  Do not, under any conditions, demand a specific document.  You may provide examples from the list.  If the employee provides a document that is acceptable on its face and reasonably relates to that employee, do not ask for additional documentation. 

4. Can you accept a laminated Social Security Card as a List C document?
According to the Handbook for Employers issued by the Department of Justice, “you may not accept a laminated Social Security Card as evidence of employment eligibility if the card states on the back ‘not valid if laminated’.  Lamination of such cards renders them invalid.” If the Social Security Card is invalid, please ask the employee to either present a document from List A or one document from List B and one document from List C.  

5. Do you need to witness the employee signing Form I-9?

No, the employee may sign the form outside of your presence.  However, you do need to personally examine the documents presented for Section 2 and verify that (1) the documents appear genuine on their face; and (2) they reasonably relate to the employee who is presenting the documents. 

6. What is your company’s policy on photocopies?

The company should adopt a uniform policy for photocopying documents, which is adhered to regardless of citizenship or nationality.  It is advisable to keep photocopies of all documents presented for all employees, including US citizens.  

7. A potential employee presents a receipt for a lost green card. Is this document acceptable? What (if any) follow-up obligations exist?
Yes, you can accept a receipt for a replacement of a lost, stolen, or damaged green card.  Yes, you do have follow-up obligations.  The employer must re-verify the I-9 Form within the next 90 days.  Proof of the employee’s ongoing efforts to replace the card or work with the Immigration Service is acceptable. The Form I-9 should be noted every 90 days until the lost, stolen, or damaged card is replaced and presented. 

8. How long is an employer required to retain the I-9 form?

Employers are required to maintain I-9 records on file for three years from an employee’s date of hire or one year after an employee’s separation from the company, whichever is later.  Thus, employers are required to keep I-9s for (a) all current employees hired after November 6, 1986, and (b) all separated/terminated employees within the retention period.

9. How does an employer determine when re-verification is necessary? If deemed necessary, at what point in time do they need to reverify?
The employer needs to review the employee’s attestation of status within Section 1, which is where the employee must swear to the expiration of their work eligibility.  Generally, an employee will only need to be re-verified if they have listed an expiration date for their work eligibility.  If re-verification is necessary, it must be completed by the employer on or before the expiration date. If the employee indicates in Section 1 that they are a U.S. citizen, then re-verification is never necessary.  It is important to note that not all documents listed within Section 2 will need to be re-verified. 

10. A current employee tells you that his LPR card is expiring. What are the employer’s obligations and duties? 
The employer does not have any duties or obligations.  Lawful Permanent Residents (“green card holders”) remain authorized for employment even after their card expires.  (An expired green card has other ramifications, but nothing that affects employment authorization for existing employees.)  This policy is similar to United States citizens.  The employer does not need to re-verify the status of a U.S. citizen because a U.S. citizen remains employment authorized even after their driver’s license (for example) expires. 

11. A current employee tells you that he has lost his employment authorization status. What are you required to do and what options do you have?
First, compare his statement against his I-9 form.  Determine if you have an obligation to terminate the employee. If the employee no longer has employment authorization, than the employer does not have the option to retain the employee and must terminate employment. 

12. Immigration, Customs and Enforcement or the Department of Labor notifies you that you will be audited for I-9 violations. What do you do? 
Call GoffWilson at 603.228.1277 immediately.  DOL reviews the I-9 forms during a wage and hour audit, and they will typically give the employer at least a three day notice.  If ICE “raids” your business, do not sign any statements until the document can be reviewed by an attorney.

13. Your business has out-of-state employees or employer locations in multiple states. How do you comply with I-9 rules?
Completing I-9s correctly when there are out-of-state employees or employer locations in different states is a challenge for many companies. Unfortunately, there is no easy answer to this problem. The solution that will work best for your company depends upon the company set up and practices. To restate the I-9 basics, the employer must review original documents and complete the I-9 correctly and in a timely manner – there is no way around these requirements even for out-of-state offices or employees. If new out-of-state hires are not brought to a main office to complete paperwork, you must have an out-of-state employer representative or agent reviewing original documents. The completion timeline still holds as well; employees must complete Section 1 of the I-9 by the close of business on their first day, and employers have until the third business day to review original documents and complete Section 2.