Frequently Asked Questions

The U.S. Department of Homeland Security issued a
NEW Form I-9 August 7, 2009.
You MUST use ONLY the current Form I-9.

There were more than 80 changes in I-9 law in the last year!

Questions About the Verification Process

1. Q. Do citizens and noncitizen nationals of the United States need to prove they are eligible to work?
A. Yes. 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.
While citizens and noncitizen nationals of the United States are automatically eligible for employment, they too must present the required documents and complete a Form I-9. U.S. citizens include persons born in the United States, Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. U.S. noncitizen nationals are persons who owe permanent allegiance to the United States, which include those born in American Samoa, including Swains Island.

2. Q. Do I need to complete a Form I-9 for everyone who applies for a job with my company?
A. No. You should not complete Forms I-9 for job applicants. You only need to complete Form I-9 for individuals you actually hire. For purposes of this law, a person is “hired” when he or she begins to work for you.

3. When should the I-9 Form be completed? 
A. 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.

4. Q. If someone accepts a job with my company but will not start work for a month, can I complete Form I-9 when the employee accepts the job?
A. Yes. The law requires that you complete Form I-9 only when the person actually begins working. However, you may complete the form earlier, as long as the person has been offered and has accepted the job. You may not use Form I-9 process to screen job applicants.

5. Q. I understand that I must complete a Form I-9 for anyone I hire to perform labor or services in return for wages or other remuneration. What is “remuneration”?
A. Remuneration is anything of value given in exchange for labor or services rendered by an employee, including food and lodging.

6. Q. Do I need to fill out Forms I-9 for independent contractors or their employees?
A. No. For example, if you contract with a construction company to perform renovations on your building, you do not have to complete Forms I-9 for that company’s employees. The construction company is responsible for completing Forms I-9 for its own employees. However, you must not knowingly use contract labor to circumvent the law against hiring unauthorized aliens.

7. Q. What should I do if the person I hire is unable to provide the required documents within 3 business days of the date employment begins?
A. If an employee is unable to present the required document or documents within 3 business days of the date employment begins, the employee must produce an acceptable receipt in lieu of a document listed on the last page of Form I-9. There are 3 types of acceptable receipts.
By having checked an appropriate box in Section 1, the employee must have indicated on or before the time employment began that he or she is already eligible to be employed in the United States.
NOTE: Employees hired for less than 3 business days cannot present a receipt, but instead must present the actual document(s) at the time employment begins.

8. Q. May I fire an employee who fails to produce the required documents within 3 business days?
A. Yes. You may terminate an employee who fails to produce the required document or documents, or a receipt for a document, within three business days of the date employment begins. However, you must apply these practices uniformly to all employees.

9. Q. What happens if I properly complete and retain a Form I-9 and DHS discovers that my employee is not actually authorized to work?
A. You cannot be charged with a verification violation. You will also have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien, unless the government can show you had knowledge of the unauthorized status of the employee.

Questions About Documents

10. Q. May I specify which documents I will accept for verification?
A. No. The employee may choose which document(s) he or she wants to present from the lists of acceptable documents. You must accept any document (from List A) or combination of documents (one from List B and one from List C) listed on Form I-9 and found in Part Eight of this Handbook that reasonably appear on their face to be genuine and to relate to the person presenting them. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision in the INA. Individuals who look and/ or sound foreign must not be treated differently in the recruiting, hiring, or verification process. For more information relating to discrimination during Form I-9 process, contact OSC at 1-800- 255-8155 (employers) or 1-800-237-2515 (TDD) or visit the OSC web site.
NOTE: An employer participating in the E-Verify Electronic Employment Eligibility Verification Program can only accept a List B document with a photograph.

11. Q. If an employee writes down an Alien Number or Admission Number when completing Section 1 of Form I-9, may I ask to see a document with that number?
A. No. The employee may choose which document(s) he or she wants to present from the lists of acceptable documents. You must accept any document (from List A) or combination of documents (one from List B and one from List C) listed on Form I-9 and found in Part Eight of this Handbook that reasonably appear on their face to be genuine and to relate to the person presenting them. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision in the INA. Individuals who look and/ or sound foreign must not be treated differently in the recruiting, hiring, or verification process. For more information relating to discrimination during Form I-9 process, contact OSC at 1-800- 255-8155 (employers) or 1-800-237-2515 (TDD) or visit the OSC web site.
NOTE: An employer participating in the E-Verify Electronic Employment Eligibility Verification Program can only accept a List B document with a photograph.

12. Q. If an employee writes down an Alien Number or Admission Number when completing Section 1 of Form I-9, may I ask to see a document with that number?
A. No. Although it is your responsibility as an employer to ensure that your employees fully complete Section 1 at the time employment begins, the employee is not required to present a document to complete this section. When you complete Section 2, you may not ask to see a document with the employee’s Alien Number or Admission Number or otherwise specify which document(s) an employee may present.

13. Q. What is my responsibility concerning the authenticity of document(s) presented to me?
A. You must examine the document(s), and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them.

14. The employee presents a document that is not on the list. How should I respond? 
A. 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. 

15. Q. My employee has presented a U.S. passport card. Is this an acceptable document?
A. Yes. The passport card is a wallet-size document issued by the U.S. Department of State. While its permissible uses for international travel are more limited than the U.S. passport book, the passport card is a fully valid passport that attests to the U.S. citizenship and identity of the bearer. As such, the passport card is considered a “passport” for purposes of Form I-9 and has been included on List A of the Lists of Acceptable Documents on Form I-9.

16. Q. Why was documentation for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) added to the List of Acceptable Documents on Form I-9?
A. Under the Compacts of Free Association between the United States and FSM and RMI, most citizens of FSM and RMI are eligible to reside and work in the United States as nonimmigrants. The compact also eliminated the need for citizens of these two countries to obtain employment authorization cards to work in the United States. Now FSM and RMI citizens can show a valid passport with a Form I-94 or I-94A to satisfy Form I-9 requirements.

17. Q. There are 3 documents on Form I-9 that are listed on both List B and List C. Does this mean that my employee may present 1 of those documents to prove both identity and employment authorization?
A. Three documents can be found in both List B and List C: a Native American tribal document, the U.S. Citizen Identification Card (Form I-197) and the Identification Card for the Use of Resident Citizen in the United States (Form I-179). If an employee presents any one of these documents, it establishes both identity and employment authorization on Form I-9, so you do not need any other documents from the employee to complete Section 2 of Form I-9.

18. Q. An employee has attested to being a U.S. citizen or U.S. noncitizen national on Section 1 of Form I-9, but has presented me with an I-551, Permanent Resident Card, or “green card.” Another employee has attested to being a lawful permanent resident but has presented a U.S. passport. Should I accept these documents?
A. In these situations, you should first ensure that the employee understood and properly completed the Section 1 attestation of status. If the employee made a mistake and corrects the attestation, he or she should initial and date the correction, or complete a new Form I-9. If the employee confirms the accuracy of his or her initial attestation, you should not accept a “green card” from a U.S. citizen or a U.S. passport from an alien. Although you are not expected to be an immigration law expert, both documents in question are inconsistent with the status attested to and are, therefore, not documents that reasonably relate to the person presenting them.

19. Q. May I accept an expired document?
A. No. Expired documents are no longer acceptable for Form I-9. However, you may accept However, you may accept Employment Authorization Documents (I-766) and Permanent Resident Cards (Form I-551) that appear to be expired on their face, above, see Table 2. Individuals under the Temporary Protected Status (TPS) Program whose Employment Authorization Documents appear to be expired but were actually automatically extended via Federal Register notice may continue to work based on their Employment Authorization Documents during the automatic extension period specified in the Federal Register notice announcing the extension.
NOTE: Some documents, such as birth certificates and Social Security cards, do not contain an expiration date and should be treated as unexpired.

20. Q. How can I tell if a DHS-issued document has expired? If it has expired, should I re-verify the employee?
A. Some DHS-issued documents, such as older versions of the Alien Registration Receipt Card (Form I-551), do not have expiration dates, but are still acceptable for Form I-9 purposes. However, all subsequent Permanent Resident Cards (I-551s) contain 2-year or 10-year expiration dates. You should not re-verify an expired Alien Registration Receipt Card/ Permanent Resident Card (Form I-551). Other DHS-issued documents, such as the Employment Authorization Document (Form I-766) also have expiration dates. These dates can be found either on the face of the document or on a sticker attached to the back of the document. All Employment Authorization Documents must be re-verified upon expiration.

21. Q. How does an employer determine when re-verification is necessary? If deemed necessary, at what point in time do they need to re-verify? 
A. 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. 

22. Q. A current employee tells me that his LPR card is expiring. What are my obligations and duties as the employer? 
A. 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.
 
23. Q. A current employee tells me that he has lost his employment authorization status. What am I required to do and what options do I have? 
A. 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. 

24. Q. Some employees are presenting me with Social Security cards that have been laminated. May I accept such cards as evidence of employment authorization?
A. It depends. You may not accept a laminated Social Security card as evidence of employment authorization if the card states on the back “not valid if laminated.” Lamination of such cards renders them invalid. Metal or plastic reproductions of Social Security cards are not acceptable. 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.  

25. Q. Some employees have presented Social Security Administration printouts with their name, Social Security number, date of birth and their parents’ names as proof of employment authorization. May I accept such printouts in place of a Social Security card as evidence of employment authorization?
A. No. Only a person’s official Social Security card is acceptable.

26. Q. What should I do if an employee presents a Social Security card marked “NOT VALID FOR EMPLOYMENT,” but states that he or she is now authorized to work?
A. You should ask the employee to provide another document to establish his or her employment authorization, since such Social Security cards do not establish this and are not acceptable documents for Form I-9. Such an employee should go to the local SSA office with proof of his or her lawful employment status to be issued a Social Security card without employment restrictions.

27. Q. May I accept a photocopy of a document presented by an employee?
A. No. Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate.

28. Q. I noticed on Form I-9 that under List A there are two spaces for document numbers and expiration dates. Does this mean I have to see two List A documents?
A. No. One of the documents found in List A is a foreign passport with an attached Form I-94 or I-94A, bearing the same name as the passport and containing endorsement of the alien’s nonimmigrant status, if that status authorizes the alien to work for the employer. Form I-9 provides space for you to record the document number and expiration date for both the passport and Form I-94 or I-94A.

29. Q. When I review an employee’s identity and employment authorization documents, should I make copies of them?
A. If you participate in E-Verify and the employee presents a document used as part of the Photo Screening Tool (currently the Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766) you must retain a photocopy of the document he or she presents. If you do not participate in E-Verify, you are not required to make photocopies of documents.
However, if you wish to make photocopies of documents other than those used in E-Verify, you should do so for all employees, and you should retain each photocopy with Form I-9. Photocopies must not be used for any other purpose. Photocopying documents does not relieve you of your obligation to fully complete Section 2 of Form I-9, nor is it an acceptable substitute for proper completion of Form I-9 in general.

30. Q. When can employees present receipts for documents in lieu of actual documents establishing employment authorization?
A. The “receipt rule” is designed to cover situations in which an employee is employment authorized at the time of initial hire or re-verification, but he or she is not in possession of a document listed on the Form I-9 “Lists of Acceptable Documents”. Receipts showing that a person has applied for an initial grant of employment authorization or for renewal of employment authorization are not acceptable.
An individual may present a receipt in lieu of a document listed on Form I-9 to complete Section 2 of Form I-9. The receipt is valid for a temporary period. There are three different documents that qualify as receipts under the rule:
(1) A receipt for a replacement document when the document has been lost, stolen, or damaged. The receipt is valid for 90 days, after which the individual must present the replacement document to complete Form I-9.
NOTE: This rule does not apply to individuals who present receipts for new documents following the expiration of their previously held document.
(2) A Form I-94 or Form I-94A containing a temporary I-551 stamp and a photograph of the individual, which is considered a receipt for the Permanent Resident Card (Form I-551). The individual must present Form I-551 by the expiration date of the temporary I-551 stamp; or within one year from the date of issuance of Form I-94 or I-94A if the I-551 stamp does not contain an expiration date.
(3) A Form I-94 or I-94A containing an unexpired refugee admission stamp. This is considered a receipt for either an Employment Authorization Document (Form I-766) or a combination of an unrestricted Social Security card and List B document. The employee must present acceptable documentation to complete Form I-9 within 90 days after the date of hire, or, in the case of re-verification, the date employment authorization expires.
{CBP issues an arrival-departure record to nonimmigrant aliens and other alien categories. This document indicates the bearer’s immigration status, the date that the status was granted, and when the status expires. The immigration status notation within the stamp on the card varies according to the status granted, e.g., L-1, F-1, J-1. The Form I-94 has a handwritten date and status, and the Form I-94A has a computer-generated date and status. Both may be presented with documents that Form I-9 specifies are valid only when Form I-94 or I-94A also is presented, such as the foreign passport, Form DS-2019, or Form I-20. Form I-9 provides space for you to record the document number and expiration date for both the passport and Form I-94 or I-94A.}

31. Q. My employee has applied for a new Employment Authorization Document. When my employee’s current Employment Authorization Document expires, how can I satisfy Form I-9 re-verification requirement while the application is pending with USCIS? Is the USCIS receipt notice (Form I-797) covered by Form I-9 receipt rule?
A. An employee with temporary employment authorization and holding an Employment Authorization Document (I-766) should apply for a new card at least 90 days prior to the expiration of his or her current document. DHS regulations provide that if it does not adjudicate the application for employment authorization within 90 days, it will grant an interim Employment Authorization Document valid for a period not to exceed 240 days. If your employee applied for a new card at least 90 days prior to the expiration of his or her current card but is nearing the end of the 90-day processing period without a decision from USCIS, instruct your employee to inquire about an interim Employment Authorization Document with the local USCIS office or by calling the National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TTY). Upon expiration of your employee’s current Employment Authorization Document, he or she should be able to present either a new or interim card, or a List C document, to satisfy Form I-9 re-verification requirements. In this case, the USCIS receipt notice (Form I-797) is not an acceptable receipt for Form I-9 purposes.

32. Q. My employee has presented a foreign passport with a Form I-94 or I-94A (List A, Item 5) indicating an employment-authorized nonimmigrant status. How do I know if this nonimmigrant status authorizes the employee to work?
A. You, as the employer, likely have submitted a petition to USCIS on a nonimmigrant worker’s behalf. However, there are some exceptions to this rule:
(1) You made an offer of employment to a Canadian passport holder who entered the United States under NAFTA with an offer letter from your company. This nonimmigrant worker will have a Form I-94 or Form I-94A indicating TN status, and may present either a passport or a valid Canadian driver’s license in combination with Form I-94 or Form I-94A.
(2) A student working in on-campus employment or participating in curricular practical training.
(3) A J-1 exchange visitor. Most employees who present a foreign passport in combination with a Form I-94 or I-94A (List A, Item 5) are restricted to work for their petitioning employer. If you did not submit a petition for an employee who presents such documentation, then that nonimmigrant worker is not usually authorized to work for you.
The table below lists the nonimmigrant classifications that indicate that an employee is authorized to work incident to status. Such classifications will be indicated on Form I-94 or I-94A.

33. Q. What document(s) can I accept from an employee who has applied for an extension of Optional Practical Training as a STEM student?
A. The expired Employment Authorization Document (Form I-766), the USCIS receipt notice showing a timely filing of the STEM extension application (Form I-797, Notice of Action) and a Form I-20 updated to show that the Designated School Official (DSO) has recommended the extension. This combination of documents satisfies Form I-9 requirements for 180 days (or less if the application for extension is denied beforehand). If the 17-month STEM extension is approved, the student should receive a new card reflecting the extension within the 180-day period.

34. Q. My employee is an F-1 student who was working for me as part of her Optional Practical Training. I have now submitted a petition on her behalf for an H-1B visa. Her Employment Authorization Document has expired and I must re-verify her employment authorization. What documents may she present?
A. The expired Employment Authorization Document (Form I-766), combined with a Form I-20 endorsed to show that the student’s employment authorization is still valid, and the USCIS receipt notice (Form I-797, Notice of Action), showing receipt of the H-1B petition. This combination of documents satisfies Form I-9 requirements until September 30 of each year, or until the date the petition is rejected, denied, or withdrawn. If the receipt notice has not yet been issued, the expired card and Form I-20 are sufficient. This combination of documents satisfies Form I-9 until the expiration date noted on the Form I-20, but not later than September 30. If the student presents Form I-20 without a receipt notice, the employer must re-verify upon the expiration date noted on the Form I-20. The student may present another Form I-20 indicating continued employment authorization to satisfy the re-verification requirement.

35. Q. My employee’s Employment Authorization Document (Form I-766) expired and the employee now wants to show me a Social Security card. Do I need to see a current DHS document?
A. No. During both initial verification and re-verification, an employee must be allowed to choose what documentation to present from Form I-9 lists of acceptable documents. If an employee presents an unrestricted Social Security card upon re-verification, the employee does not also need to present a current DHS document. However, if an employee presents a restricted Social Security card upon re-verification, you must reject the restricted Social Security card, since it is not an acceptable Form I-9 document, and ask the employee to choose different documentation from List A or List C of Form I-9.

36. Q. Can DHS double-check the status of an alien I hired, or “run” his or her number (typically an Alien Number or Social Security number) and tell me whether it is good?
A. DHS cannot double-check a number for you, unless you participate in E-Verify, which confirms the employment authorization of your newly hired employees.

37. Q. My employee presented me with a document issued by INS rather than DHS. Can I accept it?
A. Effective March 1, 2003, the functions of the former INS were transferred to three agencies within the new DHS: USCIS, CBP and ICE. Most immigration documents acceptable for Form I-9 use are issued by USCIS. Some documents issued by the former INS before March 1, 2003, such as Permanent Resident Cards, may still be within their period of validity. If otherwise acceptable a document should not be rejected because it was issued by INS rather than DHS. It should also be noted that INS documents may bear dates of issuance after March 1, 2003, as it took some time in 2003 to modify document forms to reflect the new USCIS identity.

38. Q. What should I do if an employee presents a Form I-20 and says the document authorizes her to work?
A. Form I-20 is evidence of employment authorization in two specific situations:
(1) The employee works on the campus of the school where he or she is an F-1 student for an employer that provides direct student services, or at an off-campus location that is educationally affiliated with the school’s established curriculum or related to contractually funded research projects at the post-graduate level where the employment is an integral part of the established curriculum.
(2) The employee is an F-1 student who has been authorized by the Designated School Official (DSO) to participate in a curricular practical training program that is an integral part of an established curriculum (e.g., alternative work/study, internship, cooperative education, or other required internship offered by sponsoring employers through cooperative agreements with the school). Form I-20 must be endorsed by the DSO for curricular practical training, and list the employer offering the practical training, and the dates the student will be employed.
In both situations, Form I-20 must accompany a valid Form I-94 or I-94A indicating F-1 status. When combined with a foreign passport, the documentation is acceptable for List A of Form I-9.

39. Q. May I accept Form DS-2019 as proof of employment authorization?
A. Form DS-2019 can be used only by a J-1 exchange visitor for employment when such employment is part of his or her program. For J-1 students, the Responsible Officer of the school may authorize employment in writing. Form DS-2019 must accompany a valid Form I-94 or I-94A. When combined with a foreign passport, the documentation is acceptable for List A of Form I-9.

Questions About Completing and Retaining Form I-9
40. Q. When do I fill out Form I-9 if I hire someone for less than 3 business days?
A. Both you and the employee must complete Sections 1 and 2 of Form I-9 at the time of hire. This means Form I-9 must be fully completed when the person starts to work.

41. Q. What should I do if I rehire a person who previously filled out a Form I-9?
A. If the employee’s Form I-9 is a version that is currently acceptable, you rehire the person within 3 years of the date that Form I-9 was originally completed, and the employee is still authorized to work, you may re-verify the employee in Section 3 of the original Form I-9. If the version of Form I-9 that you used for the employee’s original verification is no longer valid, you must complete Section 3 of the current Form I-9 upon re-verification and attach it to the employee’s original Form I-9.

42. Q. What should I do if I need to re-verify a Form I-9 for an employee who filled out an earlier version of the form?
A. The current version of Form I-9 can be found at www.uscis.gov. To re-verify an employee who filled out an earlier version of the form, you may line through any outdated information on the form and initial and date any updated information. You may also choose, instead, to complete a new Form I-9. If you used a version of Form I-9 when you originally verified the employee that is no longer valid, the employee must provide any document(s) he or she chooses from the current Lists of Acceptable Documents, which you must enter in Section 3 of the current version of Form I-9.

43. Q. Do I need to complete a new Form I-9 when one of my employees is promoted within my company or transfers to another company office at a different location?
A. No. You do not need to complete a new Form I-9 for employees who have been promoted or transferred.

44. Q. What do I do when an employee’s employment authorization expires?
A. You will need to re-verify on Form I-9 to continue to employ the person. Re-verification must occur no later than the date that employment authorization (or evidence thereof) expires. The employee must present a document from either List A or List C that shows either an extension of his or her initial employment authorization or new employment authorization. You must review this document and, if it reasonably appears on its face to be genuine and to relate to the person presenting it, record the document title, number, and expiration date (if any), in the Updating and Re-verification Section (Section 3), and sign in the appropriate space.
If the version of Form I-9 that you used for the employee’s original verification is no longer valid, you must complete Section 3 of the current Form I-9 upon re-verification and attach it to the original Form I-9.
You may want to establish a calendar call-up system for employees whose employment authorization (or evidence of employment authorization) will expire in the future.
You may not re-verify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.
NOTE: You cannot refuse to accept a document because it has a future expiration date. You must accept any document (from List A or List C) listed on Form I-9 that on its face reasonably appears to be genuine and to relate to the person presenting it. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA.
If an employee’s employment authorization document expires before the employee receives a new one, the employee may take the application receipt to a local USCIS office to receive temporary employment authorization if it has been more than 90 days since the employee applied for the new card.

45. Q. Can I avoid re-verifying an employee on Form I-9 by not hiring persons whose employment authorization has an expiration date?
A. You cannot refuse to hire persons solely because their employment authorization is temporary. The existence of a future expiration date does not preclude continuous employment authorization for an employee and does not mean that subsequent employment authorization will not be granted. In addition, consideration of a future employment authorization expiration date in determining whether an alien is qualified for a particular job may be an unfair immigration related employment practice (UIREP) in violation of the anti-discrimination provision of the INA.

46. Q. Do I need to witness the employee signing Form I-9?
A. 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. 

47. Q. As an employer, do I have to fill out all the Forms I-9 myself?
A. No. You may designate someone to fill out Forms I-9 for you, such as a personnel officer, foreman, agent or anyone else acting in your interest, such as a notary public. Please note that if someone else fills out Form I-9 on your behalf, they must carry out full Form I-9 responsibilities. For example, it is not acceptable for a notary public to view employment authorization and identity documents, but leave Section 2 for you to complete. The person who views an employee’s employment authorization documents should also complete and sign Section 2 on your behalf. However, you are still liable for any violations of the employer sanctions laws.

48. Q. Can I contract with someone to complete Forms I-9 for my business?
A. Yes. You can contract with another person or business to verify employees’ identities and employment authorization and to complete Forms I-9 for you. However, you are still responsible for the contractor’s actions and are liable for any violations of the employer sanctions laws.

49. Q. I use a professional employer organization (PEO) that “co-employs” my employees. Am I responsible for Form I-9 compliance for these employees or is the PEO?
A. “Co-employment” arrangements can take many forms. As an employer, you continue to be responsible for compliance with Form I-9 requirements. If the arrangement into which you have entered is one where an employer-employee relationship also exists between the PEO and the employee (e.g., the employee performs labor or services for the PEO), the PEO would be considered an employer for Form I-9 purposes and:
(1) The PEO may rely upon the previously completed Form I-9 at the time of initial hire for each employee continuing employment as a co-employee of you and the PEO, or
(2) The PEO may choose to complete new Forms I-9 at the time of co-employment.
If more co-employees are subsequently hired, only one Form I-9 must be completed by either the PEO or the client. However, both you and your PEO are responsible for complying with Form I-9 requirements, and DHS may impose penalties on either party for failure to do so. Penalties for verification violations, if any, may vary depending on:
(a) A party’s control or lack of control over Form I-9 process;
(b) Size of the business;
(c) Good faith in complying with Form I-9 requirements;
(d) The seriousness of the party’s violation;
(e) Whether or not the employee was an unauthorized alien;
(f) The history of the party’s previous violations; and
(g) Other relevant factors.

50. Q. As an employer, can I negotiate my responsibility to complete Forms I-9 in a collective bargaining agreement with a union?
A. Yes. However, you are still liable for any violations of the employer sanctions laws. If the agreement is for a multi-employer bargaining unit, certain rules apply. The association must track the employee’s hire and termination dates each time the employee is hired or terminated by an employer in the multi-employer association.

51. Q. What are the requirements for retaining Forms I-9?
A. If you are an employer, you must retain Forms I-9 for 3 years after the date employment begins or 1 year after the date the person’s employment is terminated, whichever is later. If you are an agricultural association, agricultural employer, or farm labor contractor, you must retain Forms I-9 for 3 years after the date employment begins for persons you recruit or refer for a fee.

52. Q. Will I get any advance notice if a DHS or DOL officer wishes to inspect my Forms I-9?
A. Yes. The officer will give you at least 3 days’ (72 hours) advance notice before the inspection. If it is more convenient for you, you may waive the 3-day notice. You may also request an extension of time to produce the Forms I-9. The DHS or DOL officer will not need to show you a subpoena or a warrant at the time of the inspection.
NOTE: This does not preclude DHS or DOL from obtaining warrants based on probable cause for entry onto the premises of suspected violators without advance notice. Failure to provide Forms I-9 for inspection is a violation of the employer sanctions laws and could result in the imposition of civil money penalties.

53. Q. How does OSC obtain information necessary to determine whether an employer has committed an unfair immigration-related employment practice under the anti-discrimination provision of the INA?
A. OSC will notify you in writing to initiate an investigation, request information and documents, and interview your employees. If you refuse to cooperate, OSC can obtain a subpoena to compel you to produce the information requested or to appear for an investigative interview.

54. Q. Do I have to complete Forms I-9 for Canadians or Mexicans who entered the United States under the North American Free Trade Agreement (NAFTA)?
A. Yes. You must complete Forms I-9 for all employees. NAFTA entrants must show identity and employment authorization documents just like all other employees.

55. Q. If I acquire a business, can I rely on Forms I-9 completed by the previous owner/employer?
A. Yes. However, you also accept full responsibility and liability for all Forms I-9 completed by the previous employer relating to individuals who are continuing in their employment.

56. Q. If I am a recruiter or referrer for a fee, do I have to fill out Forms I-9 on persons whom I recruit or refer?
A. No, with 3 exceptions: Agricultural associations, agricultural employers, and farm labor contractors are still required to complete Forms I-9 on all individuals who are recruited or referred for a fee. However, all recruiters and referrers for a fee must still complete Forms I-9 for their own employees hired after November 6, 1986. Also, all recruiters and referrers for a fee are still liable for knowingly recruiting or referring for a fee aliens not authorized to work in the United States and must comply with federal anti-discrimination laws.

57. Q. Can I complete Section 1 of Form I-9 for an employee?
A. Yes. You may help an employee who needs assistance in completing Section 1 of Form I-9. However, you must also complete the “Preparer/ Translator Certification” block. The employee must still sign the certification block in Section 1.

58. Q. If I am self-employed, do I have to fill out a Form I-9 on myself?
A. A self-employed person does not need to complete a Form I-9 on his or her own behalf unless the person is an employee of a business entity, such as a corporation or partnership. If the person is a business entity, he or she, and any authorized employees, will have to complete Form I-9.

59. Q. I have heard that some state employment agencies can certify that people they refer are authorized to work. Is that true?
A. Yes. State employment agencies may choose to verify the employment authorization and identity of individuals they refer for employment on Form I-9. In such cases, they must issue a certificate to the employer within 21 business days of the date that the referred individual is hired. If one of these agencies refers potential employees to you with a job order or other appropriate referral form, and the agency sends you a certification within 21 business days of the referral, you do not have to check documents or complete a Form I-9 if you hire that person. However, you must review the certification to ensure that it relates to the person hired and observe the person sign the certification. You must also retain the certification as you would a Form I-9 and make it available for inspection, if requested. You should check with your state employment agency to see if it provides this service and become familiar with its certification document.

Questions About Avoiding Discrimination
60. Q. How can I avoid discriminating against certain employees while still complying with this law?
A. You should:
(1) Treat employees equally when recruiting, hiring, and terminating them, and when verifying their employment authorization and completing Form I-9.
(2) Allow all employees, regardless of national origin or immigration status, to choose which document or combination of documents they want to present from the Lists of Acceptable Documents on the back of Form I-9. For example, you may not require an employee to present an employment authorization document issued by DHS if he or she chooses to present a driver’s license and unrestricted Social Security card.

You should not:
(3) Set different employment eligibility verification standards or require that different documents be presented by employees because of their national origin or citizenship status. For example, you cannot demand that non-U.S. citizens present DHS-issued documents such as “green cards.”
(4) Ask to see a document with an employee’s Alien or Admission Number when completing Section 1 of Form I-9.
(5) Request to see employment authorization verification documents before hire or completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.
(6) Refuse to accept a valid employment authorization document, or refuse to hire an individual, because the document has a future expiration date.
(7) Re-verify the employment authorization of a lawful permanent resident (LPR) whose “green card” has expired after the LPR is hired.
(8) Request that, during re-verification, an employee present a specific employment authorization document. Employees are free to choose any document either from List A or from List C of Form I-9.
(9) Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state or local government contract.
NOTE: On an individual basis, you may legally prefer a U.S. citizen over an equally qualified alien to fill a specific position, but you may not adopt a blanket policy of always preferring citizens over noncitizens.

61. Q. Who is protected from discrimination on the basis of citizenship status or national origin under the anti-discrimination provision of the INA?
A. All U.S. citizens, lawful permanent residents, temporary residents, asylees, and refugees are protected from citizenship status discrimination, except for those lawful permanent residents who have failed to make a timely application for naturalization after they become eligible.
You cannot discriminate against any employment authorized individual in hiring, firing, or recruitment because of his or her national origin.
Similarly, all employment-authorized individuals are protected from document abuse.

62. Q. Can I be charged with discrimination if I contact DHS about a document presented to me that does not reasonably appear to be genuine and relate to the person presenting it?
A. No. If you are presented with documentation that does not reasonably appear to be genuine or to relate to the employee, you cannot accept that documentation.
While you are not legally required to inform DHS of such situations, you may do so if you choose. However, DHS is unable to provide employment eligibility verification services other than through its E-Verify program. If you treat all employees equally and do not single out employees who look or sound foreign for closer scrutiny, you cannot be charged with discrimination.

63. Q. I recently hired someone who checked the fourth box in the immigration status attestation section on Section 1 of Form I-9 indicating that he is an alien. However, he informed me that he does not have an employment authorization expiration date, which appears to be required by the form. What should I do?
A. Refugees and asylees, as well as some other classes of alien such as certain nationals of the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau, are authorized to work because of status. Such aliens may not possess an Employment Authorization Document (I-766), yet can still establish employment authorization and identity by presenting other documentation, including a driver’s license and an unrestricted Social Security card, or a Form I-94 or I-94A indicating their work-authorized status. Such individuals should write “N/A” in Section 1 next to the alien box. The refusal to hire work-authorized aliens because of their immigration status, or because they are unable to provide an expiration date on Form I-9, is a violation of the anti-discrimination provision in the INA.

64. Q. What should I do if I have further questions regarding the INA’s anti-discrimination provision and Form I-9 verification process?
A. Call the OSC employer hotline with questions: 1-800-255-8155 1-800-362-2735 (TDD); or Visit the OSC web site.

65. Q. What if someone believes they have experienced discrimination under the INA’s anti-discrimination provision?
A. Call the OSC employee hotline:1-800-255-7688 1-800-237-2515 (TDD); or Visit the OSC Web site, http://www.usdoj.gov/crt/osc/, for more information and to download a charge form.

66. Q. What if someone believes he or she has experienced discrimination under Title VII of the Civil Rights Act of 1964?
A. Call the EEOC: 1-800-USA-EEOC 1-800-669-6820 (TTY); or visit EEOC web site.

Questions About Employees Hired Before November 7, 1986
67. Q. Does this law apply to my employees if I hired them before November 7, 1986?
A. No. You are not required to complete Forms I-9 for employees hired before November 7, 1986.
NOTE: This “grandfather” status does not apply to seasonal employees or to employees who change employers within a multi-employer association.

68. Q. Will I be subject to employer sanctions penalties if an employee I hired before November 7, 1986, is an illegal alien?
A. No. You will not be subject to employer sanctions penalties for retaining an illegal alien in your workforce if the alien was hired before November 7, 1986. However, the fact that an illegal alien was on your payroll before November 7, 1986, does not give him or her any right to remain in the United States. Unless the alien obtains permission from DHS to remain in the United States, he or she is subject to apprehension and removal.

Questions About Different Versions of Form I-9
69. Q. Is Form I-9 available in different languages?
A. Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may use the Spanish version to meet the verification and retention requirements of the law. Employers in the United States and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but the English version must be completed and retained in the employer’s records. Employees may also use or ask for a preparer/translator to assist them in completing the form.

70. Q. Are employers in Puerto Rico required to use the Spanish version of Form I-9?
A. No. Employers in Puerto Rico may use either the Spanish or the English version of Form I-9 to verify new employees.

71. Q. May I continue to use earlier versions of Form I-9?
A. No, employers must use the current version of Form I-9. All previous editions of Form I-9, in English or Spanish, are no longer valid.

72. Q. Where do I get the Spanish version of Form I-9?
A. You may download the Spanish version of this form from the USCIS Web site at www.uscis.gov. Click on Immigration Forms and scroll down to Form I-9. For employers without internet access, you may call the USCIS Forms Center toll-free at 1-800-870-3636.

Questions About Military Installations
73. Q. I know that a valid unexpired military ID card is a valid List B identification document. Is a military ID card ever acceptable as List A evidence of both identity and employment authorization?
A. Yes, but only if the employer is the U.S. military and the Form I-9 is completed in the context of military enlistment itself. In the case of an individual lawfully enlisted in the U.S. Armed Forces, a valid, unexpired military ID card may be accepted as a List A document by the Armed Forces only. No other employer may accept a military ID card as a List A document.

Questions About Inspections
74. Q. Immigration, Customs and Enforcement or the Department of Labor notifies you that you will be audited for I-9 violations. What do you do? 
A. Call Goulder Immigration Law Firm 1-866-US VISAS 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. An employer never knows when it will be raided or receive a desktop audit inspection. It is always best to have a written company policy and procedures in place addressing what to do when ICE or DOL comes calling.

Questions About Out of State Employees of Employer Locations in Different States
75. Q. My business has out-of-state employees or employer locations in multiple states. How do I comply with I-9 rules? 
A. Completing Forms I-9 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 your company’s administrative procedures and practices.
Basically, the employer must review original documents and complete the Form 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 Form I-9 (and other company paperwork) you must have an out of state employer representative or agent review the original Form I-9 documents. The completion timeline does not vary. Employees must complete Section 1 of the Form 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.