Greenberg Traurig, LLP  




GT Business Immigration Observer
January 2003

Are Your I-9s Up to Par?

Most employers know what the I-9 form looks like, and most believe they are completing the form and satisfying the regulatory requirements. Sometimes, however, a closer look at I-9 files or a small audit will reveal forms with missing or inaccurate information that can leave an employer vulnerable to fines totaling $10,000 or more. But that is not the only liability faced by employers, depending on how the I-9 forms are completed and what questions employees are asked during the process, employers could also open themselves up to discrimination law suits brought by employees for national origin discrimination. In fact, IRCA's anti-discrimination provisions prohibit employers of four or more employees from discriminating against certain protected individuals (including permanent residents, temporary residents, special agricultural workers, refugees, and asylees) with respect to hiring, discharging, recruiting, or referring for a fee. 

The information below is intended to serve as a general review of the requirements for employers of all sizes. An internal audit is recommended for those who may have concerns about their I-9 documentation and possible liabilities.


In 1986, the U.S. Congress passed the Immigration Reform and Control Act (IRCA) and enacted the I-9 employment verification requirement. IRCA was designed to discourage employment of undocumented workers and thereby discourage illegal immigration into the United States.

The Form I-9 is used to verify both the identity of all employees hired after November 6, 1986 and their eligibility to work in the United States. Employers must comply with the I-9 requirement every time they hire an employee (defined as "any person who performs labor or services in return for wages or other remuneration"). Failure to comply with the I-9 requirements can subject the employer to a variety of different civil penalties (such as monetary fines), and in some cases, criminal penalties.


  • Failure to properly complete an I-9
  • Knowingly hiring, continuing to employ, or contacting to obtain the services of an unauthorized alien
  • Providing or knowingly accepting false social security cards
  • Pattern and practice of I-9 compliance failure 

Other Related Offenses  

  • Refusal to hire someone because of temporary work authorization
  • Not accepting other valid documents that can be used in lieu of certain INS documents


Failure to properly comply with immigration employment laws can result in fines totaling $10,000 or more. It is also important that an employer not demand excessive documentation, since this can lead to the employer being fined or sued for discrimination if it is proven to be intentional.


Whenever an employer hires an individual (citizen or non-citizen) as an employee, the employer is required to complete the Form I-9.

Certain individuals, however, are exempted from the I-9 requirement:

  • employees hired before November 7, 1986, and continuously employed by the same employer
  • employees hired for private, casual domestic work on an irregular basis
  • independent contractors, for whom the employer has not set work hours, provide tools for the job, or does not have the authority to hire and fire
  • individuals provided to employers by entities providing contract services, such as temporary agencies (the agency/contractor would be considered the "employer")


There are three important sections on the Form I-9 that must be accurately completed in order to comply with the I-9 requirement:

Section 1: The employee must complete Section 1 at the time of hire (no later than the date the employee starts). It is the employer’s responsibility to assure that the employee fills in the correct information and signs/dates the form. Failure to provide accurate information on the I-9 can make the employer liable.

Within section 1, employees must indicate their current status, either as citizens/nationals of the U.S., lawful permanent residents ("green card holders"), or aliens eligible to work with temporary work authorization.

Section 2: The employee must present original documents (not photocopies) that establish identity and employment eligibility. The employee may present the necessary documentation in one of two different ways:

  1. Present one document from List A on the I-9 form, establishing both identity and employment eligibility, OR
  2. Present one document from List B (establishing identity) and List C (establishing employment eligibility) on the I-9 form.

An employer may not specify which documents an employee is required to present. Such a requirement can be considered "document abuse" and is an unlawful immigration-related employment practice. After reviewing the employee’s documentation, the employer must fully complete Section 2 within three business days of the employee’s start date. An employer must accept documentation presented by the employee if the documents reasonably appear to be genuine on their face.

If an employee is hired for less than three business days, both Sections 1 and 2 must be completed at the time of hire.

Section 3: Updating and Reverification

  • Employers must ensure that the employees maintain employment eligibility by renewing expiring status that the employee indicated in Section 1. Additionally, employees must renew expiring employment authorization documents presented in Section 2. Identification documents, however, do not need to be reverified. The employer must complete 3, Updating and Reverification, before the employee’s relevant expiration date.
  • An employer may be required to reverify employment eligibility for a particular employee when an employee’s work authorization document has expired or when an employee is rehired within the retention period of his/her original I-9 form, but the basis of employment authorization has changed or expired. Reverification on the I-9 form must occur before the date of the expiration date.
  • Reverifying Work Authorization for Current Employees:

  • An employer can reverify a current employee’s employment authorization on the original I-9 form or a new I-9 form if necessary. If a new form is used, the employer should note the employee’s name in Section 1, complete Section 3, and attach the new form with the original I-9.
  • The employee must present documentation showing an extension of his/her employment authorization or new work authorization.
  • Reverifying or Updating Work Authorization for Rehired Employees

  • When an employer rehires an employee, the employer must verify that the employee still possesses work authorization. The employer may complete a new I-9 form or reverify/update the original form by using Section 3.
  • Update: If a rehired employee’s basis for employment eligibility has remained the same as indicated on the I-9 form, the employer must perform an update. When updating rehire documentation, employers should record the rehiring date, and sign/date Section 3. If the employer needs to use a new I-9 form, he/she should write the employee’s name in Section 1 and attach the new form to the original I-9 form.
  • Reverify: If a rehired employee’s basis for employment eligibility has changed/expired, the employer must reverify. In order to reverify a rehired employee, the employer must record the following on the I-9 form: a) date of rehire b) document title, number, and expiration date of reverification documentation from the List A or C originally presented, and c) sign and date Section 3.
  • Suggestion: It is useful to create a system that will remind the employer when an employee’s work authorization document is due to expire. Early notice of expiration will give employees adequate time to renew authorization. Employees should reapply for work authorization at least ninety days before the expiration date.

    While being aware of this information is helpful in guiding employers to the proper completion of I-9 documents and hopefully limit liabilities, there are many other issues that should be considered during this process including:

    • What if an employee is unable to provide the documentation within three days of his/her employment start date?
    • What I-9 records should an employer keep on file and for how long?
    • Should we copy the documents that are provided for verification?
    • What can we do if forms I-9 are lost, destroyed, or not maintained to begin with?
    • Should we maintain a separate file for forms I-9?

    To ensure that all concerns and issues are addressed we also recommend regular audits of files. For Form I-9 processing please contact GT Business Immigration Group at

    The I-9 employment verification process is an integral part of an employer’s compliance with U.S. Immigration Laws. As Human Resource Managers recruit and hire foreign employees to meet their companies’ needs, they must also ensure that these employees are authorized to work in the United States. The involvement of immigration counsel can generally help employers limit liabilities by providing comprehensive legal advice in order to make the I-9 process easier and more efficient for Human Resource Managers.


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