Newly hired employees must complete Form I-9, Employment Eligibility Verification, which requires them to provide certain documents showing their identity and that they are legally allowed to work in the United States.

To help prevent the influx of undocumented immigrants, employers in the United States are only allowed to employ workers who can prove their identity and their eligibility to work in the country.

Key Takeaways

  • Form 1-9 is used by companies that are hiring personnel for employment in the United States, to verify their eligibility to work.
  • Employers are required by law to verify a potential employee's identity and whether they are authorized to work in the U.S.
  • Employers who either hire and continue to employ workers they know are unauthorized, or who fail to produce a form for inspection by immigration officers, face cash fines.
  • Form I-9 can only be completed and considered by employers after a worker has a job offer, so as to prevent the employer to discriminate in hiring on the basis of immigration status.

A Little History

The Immigration Reform and Control Act was enacted in 1986 to legalize about 2.7 million undocumented immigrants while at the same time attempting to deter future undocumented immigration. Form I-9 was created to require newly hired workers to show eligibility to work in the U.S.

Originally, 29 forms were acceptable to establish a worker’s identity and/or eligibility to work in the U.S. As of 2020, there are 25 acceptable documents for establishing identify and/or work eligibility.

Sanctions on Employers

Employers who fail to comply with I-9 completion and retention rules can be penalized severely. Knowingly hiring and continuing to employ unauthorized workers can trigger fines ranging from $573 to $20,130 per employee, depending on the nature of the violation (e.g., failing to complete the form, participating in document fraud, and whether the violation is a first or subsequent offense.) Substantive violations, such as failing to produce a form for inspection by the Immigration and Customs Enforcement (ICE) range from $230 to $2,292.

In February 2015, a temporary staffing firm was hit with a $227,000 fine for falsely claiming it had verified work eligibility for 242 employees it hired. Despite signing Form I-9 under penalty of perjury that the information was correct, the firm had not looked at the actual documents (only photocopies).

However, technical violations of I-9 requirements won’t be penalized immediately (employers will be notified of the violations and given 10 business days to correct the errors). Technical violations include:

  • Failure of the employee to date the form at the time employment begins.
  • Failure to provide the date that employment begins.
  • Failure to date the employer section of the form within three business days of the date that employment begins.
  • Failure to provide the date of rehiring an employee in the section of the form used for rehiring.
  • Failure to indicate that an employee is under the age of 18.

An employer who can demonstrate good faith compliance has a rebuttable defense to any penalty that the government attempts to impose. Once this is done, it is up to the government to then show that the employer did not act in good faith. 

There are 25 documents that can be used to establish a worker's identity and eligibility for employment, including a passport, a driver's license or non-driver's ID card, a school ID card with a photograph, and a social security card.

Form I-9 Misconceptions

When you’re hiring, firing, or recruiting someone, employers cannot consider national origin and citizenship or immigration status; using this information in employment decisions is discriminatory. This means that an employer cannot use the I-9 form as a prerequisite to making an offer of employment because merely suspecting that someone may be ineligible and refraining from a job offer as a result can be discriminatory. The form is only completed once a person has been offered a job.

Form I-9 has not been replaced by E-Verify, an online method of quickly determining eligibility to work in the United States. Completing the Form I-9 for each newly hired employee is still mandatory, even if an employer voluntarily opts to use E-Verify.

The Bottom Line

Being an employer entails many responsibilities to the government. Properly completing, retaining, and producing Form I-9 upon request is one of these obligations.