I-9 Form Questions and Answers
What is the I-9?
An employer cannot hire a foreign national whom the employer knows is ineligible for employment in the US. The Immigration Control and Reform Act, “IRCA,” makes all US employers responsible for verifying through a specific process, the identity and work authorization for all employees, whether foreign or not. Employers must fill out and maintain an I-9 form for all employees. The employee’s work authorization documents need only be inspected when the employee is actually hired.
Employers should be careful also when using contract labor, because an employer cannot have a contract employee where the employer knows the contract employee is not authorized to work in the US. Also, employers cannot ask for more than the required documents, or refuse to honor documents that appear to be reasonably genuine on their face.
How Long Should I Keep I-9s on File?
An employer must retain the I-9 form for each employee until the latest of 3 years after the hire date, or 1 year after the termination date. For example, if an employee only works for six weeks, the form should be kept until the 3rd anniversary of the hire date. If an employee works for many years, the form should be kept for 1 year from the date of the employment’s end.
What if I learn that an Employee is Unauthorized to Work?
According to the Department of Citizenship and Immigration Services (USCIS), an employer who discovers that an employee has been working without authorization should allow the employee another opportunity to present acceptable documentation and fill out a new I-9. But, if the employer knows or should have known that the employee is unable to work in the US, the employer may be subject to significant penalties.
What If I Buy a Business with Existing Employees?
If you acquire a business with existing employees, you can rely on the existing I-9s. However, under the law, you are responsible for any I-9s that are defective. A carefully drafted business purchase agreement should very clearly discuss I-9 liabilities.