We receive a lot of questions about the I-9—the form used to verify the identity and employment authorization of all individuals hired for employment in the United States. Here are some of the most common:
1: Is The New Form Available Now?
Yes. The new I-9 form was released November 14. You may now use it, although the old form will remain valid for new hires through January 21, 2017. The new I-9 should be used only for new employees and when you are required to reverify temporary work authorization. You should not request that current employees complete another I-9 simply because of the new form.
2: How Should I-9s Be Stored?
Separately. We recommend that you keep all I-9s in either a separate master file or a three-ring binder. Because I-9 files are subject to unique record retention laws, a separate master file or three-ring binder will help ensure that you retain these forms for as long as necessary and that you can readily discard them after the retention period expires.
For ease of organization, we even recommend removing an employee’s I-9 from the master folder or binder on their termination date and storing it a separate “terminated employee” I-9 file until the appropriate destroy date.
3: Are we required to make copies of the documents?
Usually not. Unless you participate in the E-Verify program, you’re not required to photocopy or scan documents for retention, and doing so is voluntary. However, if you wish to make photocopies of documents other than those used for E-Verify, you should do so for all employees, regardless of national origin, citizenship, or work authorization, and you must be consistent with this decision. In addition, these photocopies must be stapled to the I-9 and may not used for any other purpose.
4: Do Remote Employees Need to Provide Original Documentation?
Yes. The U.S. Citizenship and Immigration Services (USCIS) requires that all documents for completion of the I-9 be viewed in their original format, meaning that a fax or scan is not acceptable. The original documents must be in-hand of the company representative who is signing the I-9 and reviewed in the presence of the employee.
For remote employees, this USCIS requirement presents obvious difficulties. But if a manager and the new employee cannot be in the same place within the first three days of employment, you can find a local notary public to act as a company representative to complete the form. Just keep in mind that some notaries cannot or will not sign Section 2 due to notary regulations, and incomplete forms are not permissible. The employer is responsible for ensuring that any authorized representative properly completes Section 2.
5: Do All Workers Need to Complete the I-9?
No. Non-employees including volunteers, unpaid interns, and independent contractors should not complete an I-9, as none of these workers (if properly classified) are employees.
Additionally, those hired before November 6, 1986, those hired for casual domestic work in a private home, and those who do not perform work on U.S. soil, do not need to complete an I-9.
Lastly, those providing labor to you, who are actually employed by a contractor providing contract services (e.g., employee leasing or temporary agencies), do not need to complete an I-9 with you; the I-9 should be done with their primary employer.
6: If an Employee Changes Their Name or Address, Do We Need to Do Another I-9?
Usually not. Except for certain government contractors or in some situations involving use of fraudulent documents, employers do not need to update or complete a new I-9 when an employee changes their legal name or address. An employee is not required to provide documentation to show that they have changed their name for the purpose of the I-9. However, USCIS recommends maintaining correct information on I-9s and taking steps to ensure a name change is legitimate. To update the employee’s original I-9, enter their new legal name in Box A of Section 3, and then sign, date and print your name on the final line.
7: How Long Should We Store an I-9?
Quite a while. Form I-9s should be retained for the full length of an individual’s employment with you. Then, after employment has ended, they must be stored for 3 years after the date of hire, or 1 year after the date of termination, whichever date is later.
Once an I-9 is past its retention period, you may destroy it. We recommend a secure shredding company to ensure proper disposal and that documents related to an employee’s identity are secure.
Question & Answer
Q: A newly-hired employee cannot come up with proper identification for the Form I-9. He has presented an expired state ID, but no other documentation. I assume we can’t accept the expired documentation. Can we still have him work or should we let him go?
A: You are correct that you may not accept an expired ID when completing Section 2 of the I-9. And unless the employee has presented enough other documentation for completion of Section 2, you’ll need to let him know that he has not established work authorization.
Show him the I-9 List of Acceptable Documents and ask him to provide alternate documentation or a valid receipt for a replacement document. Be sure not to specify which documents on the list he needs to provide, as this must be the employee’s decision.
As you’re aware, the I-9 must be completed within three business days of the employee’s date of hire. If he fails to bring acceptable documentation within that timeframe, you should either terminate his employment or put him on an unpaid leave of absence for a defined and communicated length of time (e.g., 10 days) pending his presentation of proper documents.