Introduction to Form I-9

The Immigration and Nationality Act (INA) imposes an affirmative duty on employers to prepare and retain Forms I-9, “Employment Eligibility Verification,” for any employees hired after November 6, 1986 and to make the original Forms I-9 available for inspection.

The I-9 Form, Employment Eligibility Verification, must be completed for each new employee within three business days of the hire, and each separate failure to properly prepare, retain, or produce for inspection the original I-9 forms upon request constitutes a violation of law. Forms In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.

Initial employer Forms I-9 duties:

1. Fully complete a Form I-9 for each new hire;
2. Complete Form I-9 within 3 business days of hire;
3. Properly retain all employer Forms I-9;
4. Make all Forms I-9 available for inspection within 3 business days, upon request.

The heart of the Form I-9 law is: (1) The employer must examine documents presented by the employee to establish the worker’s identity and employment authorization (i.e., the documents presented must reasonably relate to the person presenting them); and, (2) The employer must certify and date its examination of the documents presented.

Form I-9 has two parts that are each critical to maintaining the integrity of the employment eligibility verification system, and underlie I-9 enforcement penalties. Form I-9 Section 1 consists of an employee attestation, in which the employee provides information under oath about his or her status in the United States. Form I-9 Section 2 consists of an employer attestation, which has two separate components: a documentation part and a certification part.

Form I-9 Section 2 documentation part requires the employer to list the specific documents the employer examined to establish a worker’s identity and eligibility for employment, and to provide certain information about the documents. The Section 2 certification part requires the employer or agent to sign Form I-9 under penalty of perjury within three days of hiring an employee certifying that the employer examined the documents identified and found that they appear to be both genuine and related to the individual named:

• The document photo looks like the individual;
• The date of birth is consistent with the individual; and,
• There is not reason to doubt the credibility of the documents as they relate to the individual presenting them.

Knowingly Hire & Continue to Employ Violations

A “knowingly hire” violation requires evidence the employer knew of the alien’s unauthorized status at the time of the hire. If the employer learned that the alien was unauthorized after the alien was hired, the employer will be charged with “continuing to employ” (knowing the alien is or has become unauthorized to work for the employer).

Actual knowledge can be imputed to the employer where an officer, supervisor, or manager of the employer had knowledge even if the employer did not.

Constructive knowledge will establish the employer’s requisite knowledge the alien was unauthorized to work where the employer should have known. Constructive knowledge is knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.

An Independent Contractor or Subcontractor May Be Your “Employee” for Purposes of For I-9 Compliance Practices

The employer DOES NOT need to complete a Form I-9 for persons who are independent contractors, however, the employer may NOT transfer the hiring responsibilities to independent contractors who may be hiring undocumented workers.

The definition of "independent contractor" for employment eligibility verification and Form I-9 liability depends on a series of factors relating to the extent of control the employer has over the manner in which the work is to be performed. Two factors are heavily weighted when for Form I-9 compliance and liability:

1. Who exercises control over the “means and methods” for completing the job, and
2. The customary practices in a particular industry.

The employer’s actual knowledge its independent contractor or subcontractor is using unauthorized employees is not required for Form I-9 liability. The employer’s constructive knowledge the independent contractor or subcontractor is using unauthorized workers is a sufficient basis for the employer to have liability to properly complete and maintain the worker’s Form I-9 in compliance with all employer sanctions laws.

Constructive knowledge for independent contractor Form I-9 liability arises when the employer has information available to it that an individual is not authorized to work.

The better practice is for employers to require their independent contractor to comply with the employer sanctions verifications requirements.

Click here for "Employer Best Practices for Independent Contractors and Subcontractors".