Form I-9 Acceptable Documents

Verifying US employment authorization is an essential part of the recruitment process, ensuring that those hired by employers are legally entitled to accept work in the US.

The following guide is designed to help employers navigate the Form I9 process, including the I9 acceptable documents that employees must produce to prove their right to work.

 

What is the Form I9 employment authorization process?

Before starting a new job in the US, a Form I9 (Employment Eligibility Verification) must be completed by and on behalf of each employee. The employee must first attest to their employment authorization and provide their employer with physical proof of their identity and right to work in the US from the I-9 documents list. Having physically or, where permitted, remotely examined an acceptable document or combination of I9 documents, the employer must record on the form the type and details of the documentation examined.

The latest edition of Form I9, dated 08/01/23 (mm/dd/yyyy), comprises the following two sections and two supplements (depending on the circumstances):

• Section 1: Employee Information and Attestation (to be completed by employees)
• Section 2: Employer or Authorized Representative Review and Verification (to be completed by employers once the employee’s section has been completed)
• Supplement A, Preparer and/or Translator Certification for Section 1 (to be completed by those assisting employees in completing or translating Section 1, where applicable)
• Supplement B: Reverification and Rehires (to be completed by employers for any employees who are rehired or whose employment authorization requires reverification).

 

I-9 document: employer obligations

Under US federal law, an employer must complete Form I9 every time they hire someone to perform paid labor or services, including citizens and non-US citizens, whether in return for wages or other remuneration. In this way, the employer is able to establish the identity of each new employee, ensuring that they are who they say they are. Additionally, they will be able to verify that each new recruit is lawfully allowed to undertake gainful employment.

An individual will be employment authorized if, for example, they are a citizen, a green card holder, someone with a suitable work visa or someone with a visa where employment is authorized incident to status, such as the dependent spouse of certain workers. Some individuals may also have been specifically approved to undertake paid work, as evidenced by an Employment Authorization Document (Form I-766/EAD). This could include, for example, academic and vocational students, as well as those who have applied to adjust from nonimmigrant to immigrant status but their green card application is still pending.

The employer can delegate the task of checking the employee’s documentation and completing Form I9 to an authorized person, where this can be any person the employer nominates, hires or contracts with to complete Form I9 on their behalf. However, employees cannot act as authorized representatives for their own Form I9, including completing Section 2 of the form or attesting to the authenticity of the documentation they present.

The employer must also ensure that the employment verification process and completion of Form I9 is done within the relevant timeframes. This means that the employee must complete Section 1 any time after they have accepted their offer of employment, but no later than the first day of paid work. The employer, or any authorized representative on their behalf, must then review the employee’s I9 documents and complete Section 2 within 3 business days of the employee’s first paid day. For example, if an employee starts work for pay on a Monday, the employer must complete Section 2 by the Thursday of that week.

The employer must additionally complete Supplement B where an employee’s authorization expires. This supplement must also be completed if the employee is rehired within 3 years of the date the original Form I9 was completed or provides proof of a legal change of name.

 

List of I-9 acceptable documents

The list of acceptable documents for Form I9 purposes can be found on page 2 of the form itself, where employees may present either one selection from List A or, alternatively, one selection from List B and List C combined. A document from List A will establish the employee’s identity and employment authorization together, while List B documents establish only identity and List C documents establish only employment authorization.

Examples of List A documents that establish both identity and employment authorization include a US passport, a green card, a foreign passport with a temporary I-551 stamp as evidence of permanent resident status while a new green card is pending, or an EAD on Form I-766 with a photo. In cases where an employee is temporarily authorized to work for a specific employer by reason of their status, they must provide both a foreign passport and Form I-94 (Arrival/Departure Record) endorsed with their nonimmigrant status.

Documents from List B that establish only identity include an employee’s driving license or photographic ID card issued by either a federal, state or local government body. For non-photographic ID cards, they must contain identifying information, such as the employee’s name and address, their date of birth and gender, and their height and eye color.

Documents from List C that establish only employment authorization include things like the employee’s social security account number card, so long as this does not contain any work restrictions, or a US-issued original birth certificate or certified copy bearing an official seal.

For a complete list of I9 acceptable documents, both employers and employees should refer to page 2 of the latest version of Form I9. This also sets out examples of acceptable receipts that may be presented by an employee for a temporary period in lieu of any document listed above. This could include a receipt for a replacement of a lost, stolen or damaged List A, B or C document. Importantly, employers can only accept original and unexpired documentation from List A, or from Lists B and C combined, or an acceptable receipt.

 

How to check I-9 documents

When examining I9 documents, the employer or authorized representative must:

• carefully examine the documentation that the employee presents, ensuring that this appears on the official list of I9 acceptable documents and that it is original (with the exception of certified copies of birth certificates) or is an acceptable receipt
• enter the document title, issuing authority, any document number and any expiration date from the document(s) presented in Section 2 of Form I9
• enter the date the employee began or will begin work for pay
• enter the full name, signature and title of the person completing Section 2, together with the date they completed this section
• enter the employer’s business name and physical address, where employers may not enter a PO box address (if there are multiple locations, the most appropriate address that identifies the employer’s location in respect of the employee must be used)
• return the documentation presented for Form I9 purposes back to the employee.

The employer or their authorized representative must accept any I9 documents provided by an employee that reasonably appear to be genuine and relate to the employee presenting them. If the employer or authorized representative determine the documentation does not reasonably appear to be genuine and relate to the employee in question, the employee should be allowed to present other documentation from the list of I9 acceptable documents.

 

I-9 remote document checks

An employee’s documentation must be reviewed in their physical presence, unless the employer participates in E-Verify. In these cases, the employer may be eligible to remotely examine an employee’s I9 documents under the alternative DHS-authorized procedure.

E-Verify is an online confirmation system that confirms employment eligibility by comparing the employee’s Form I9 information, as entered in to the system by the employer, with information in records available to the DHS and SSA (Social Security Administration). Except in certain circumstances, such as where an employee is assigned to cover a federal contract, or in states with legislation that require system participation, E-Verify is a voluntary program. However, it is the best means available for employers to confirm the employment eligibility of new hires and feel reassured that any I9 documents are genuine.

Participation in E-Verify will also allow an employer to take advantage of the alternative examination procedure authorized by the DHS. Provided the employer is enrolled in good standing in E-Verify and, having been sent a copy of the I9 documents to be examined, they can conduct a live video with the employee presenting the same I9 document(s) to ensure that the documentation reasonably appears to be genuine and relates to that person.

The employer can accept any documentation from the list of I9 acceptable documents, although the List B document must have a photo for any List B and C combination. The employee must also provide their Social Security number in Section 1 of the form.

Finally, the employer must complete the corresponding box on Form I9 to indicate that remote rather than physical examination of an employee’s documents has been undertaken, retaining a clear copy of the documentation for their I9 records.

 

Best practice compliance advice for employers

When recruiting a new employee, the employer must make the complete instructions to the form and the list of I9 acceptable documents available. These instructions will take the employee through each relevant box, where the employee will be required to provide their personal information and attest to their employment authorization. They must also provide acceptable documentation as evidence of their identity and legal entitlement to work.

Once Form I9 has been completed by the employee, the employer must examine the employee’s I9 document(s) to determine if these relate to the employee and reasonably appear to be genuine, recording the relevant document information on the form.

The employer must then retain Form I9 for 3 years after the date that the employee started work or, alternatively, for one year after their employment is terminated, whichever is later. The employer must also make Form I9 available for inspection, together with any copy documentation filed alongside this form, if this is requested by authorized US government officers from either the DHS, Department of Labor or Department of Justice.

If an employee has a time-limited right to work in the US, the employer will need to reverify that employee’s employment authorization when it expires. The employer should check whether the expiration date for employment authorization provided by the employee in Section 1 matches the expiration date of the List A or List C document they presented for Section 2, where the employer should use the earlier date for reverification purposes.

The employer should remind the employee no less than 90 days before the expiration date that they will need to present the employer with a List A or List C document to show ongoing employment authorization for reverification purposes. The employee must present these documents on or before the date that their current employment authorization expires.

 

Penalties for non-compliance

US employers may be subject to significant civil money penalties under federal law for failing to comply with the mandatory requirements for completing Form I9, and doing so correctly, including what documentation can be used when it comes to I9 acceptable documents. The employer will also be responsible for violations committed by any authorized representative conducting the I9 verification process on the employer’s behalf.

In addition to the risk of federal penalties for non-compliance, employers also run the risk of discriminating against new hires if they treat employees differently because of a person’s perceived or actual citizenship, immigration status or national origin. This could be where, for example, the employer restricts the I9 documents list that will be accepted as proof of an employee’s identity and entitlement to undertake paid employment in the US.

It is contrary to anti-discrimination laws for an employer to limit which documentation employees can present as I9 verification documents because they are not US citizens. The employer must allow employees to select which documentation they will use from the official list of I9 acceptable documents to establish their identity and verify employment eligibility, where the employer is not permitted to ask for more or different documents than are required for these purposes. This means that in any scenario in which an employer treats an employee differently based on their citizenship, immigration status or national origin in the context of employment verification checks, the employer will be acting unlawfully, putting them at serious risk of a civil penalty for unfair documentary practices.

 

Need assistance?

NNU Immigration are specialist US attorneys. We provide expert advice to employers on US immigration compliance, including auditing, training and consultancy services to help organisations meet their legal duties and avoid penalties. Contact us to discuss your organisation’s compliance needs.

 

Form I acceptable documents FAQs

What is the I9 and required documents?

Form I9 is the official form used to verify an individual’s eligibility to do paid work, to be completed by the employee, followed by the employer, once they have seen proof of the employee’s entitlement to work in the US.

 

What can be used as proof of right to work?

When proving a right to undertake paid employment in the US for Form I9 purposes (Employment Eligibility Verification), an employee must provide one document selection from List A, or a combination of one selection from both Lists B and C.

This article does not constitute direct legal advice and is for informational purposes only.