Form I-9 + E-Verify Compliance
Why this matters
Form I-9 is the federal mandatory employment eligibility verification. Every employee - citizen, permanent resident, work-authorized - completes one. ICE audits I-9 records randomly + complaint-driven. Penalties. E-Verify is the optional federal database that confirms work eligibility electronically. Some states require it; the trend is toward mandatory. Get the basics right.
What I-9 does
Documents that an employer verified an employee's identity + work authorization within 3 business days of hire.
Employee completes Section 1 (their info + work authorization claim) on or before their first day.
Employer completes Section 2 (verifies documents) within 3 business days of start.
Employer retains the form for 3 years from hire OR 1 year after termination, whichever is later.
Acceptable documents
Three lists. Employee presents EITHER one List A OR one List B + one List C - employee chooses; employer cannot specify (= discrimination).
- List A (identity + work auth): US passport, Permanent Resident Card, EAD, foreign passport w/ I-94
- List B (identity only): driver's license, state ID, school photo ID, voter registration, military card
- List C (work auth only): Social Security card, US birth certificate, US citizen ID, DHS employment authorization
I-9 process flow
Day 1 (or before):
- Employee completes Section 1 (their attestation + info)
- Sign + date
Days 1 - 3 of work:
- Employer reviews documents in person (or via approved remote video for some employers)
- Documents must "reasonably appear genuine" + relate to the person presenting them
- Employer completes Section 2 (records what was reviewed + verifies)
- Sign + date
Document review standard:
- Look at original documents (not photocopies)
- Reasonable inspection - employer doesn't have to be a document expert
- Genuine + related to the bearer
- If a document doesn't look right OR doesn't match the bearer, ask for different document
- Employer can NOT demand specific documents (employee chooses from acceptable list)
Document copies:
- Employer can CHOOSE to retain copies of documents (optional; some employers do, some don't)
- If you copy, retain consistently for all employees (otherwise inconsistent practice = discrimination)
- Copies go with the I-9, not in personnel file
Storage + retention
I-9 forms must be kept SEPARATE from personnel files. ICE inspection requests JUST the I-9s - having them separate makes audit easier.
Storage options:
- Paper binder, alphabetical by last name
- Electronic I-9 system (must meet specific electronic storage standards)
Retention rule:
- 3 years after hire OR
- 1 year after termination
- Whichever is LATER
So a 2-year employee: keep for 1 year after termination = 3 years total. A 10-year employee: keep for 3 years after termination = 13 years total.
E-Verify (the next-level option)
E-Verify is an electronic system that confirms an employee's eligibility against Social Security + DHS databases.
Who must use E-Verify:
- Federal contractors (mandatory)
- State-mandated: AZ, AL, GA, MS, NC, SC, TN, UT, others - varies + expanding
- Some city-level mandates
Who uses voluntarily:
- Employers seeking additional protection from "unknowingly employing unauthorized worker" liability
- Employers in industries with high enforcement attention (construction, hospitality, agriculture)
E-Verify process:
- Employee completes I-9 normally
- Employer enters data into E-Verify within 3 business days
- System returns: "Employment Authorized" OR "Tentative Non-Confirmation" (TNC)
- TNC: employee has 8 federal working days to resolve
- Final non-confirmation = employee NOT eligible to work; terminate
E-Verify cost: free (federal system). Time investment: ~5 - 10 minutes per hire.
Common I-9 mistakes (the audit findings)
- Section 1 not completed by employee: violation
- Section 2 not completed within 3 days: violation
- Documents not reviewed by employer signing Section 2: violation
- Mismatched information: employee name on Section 1 vs documents
- Demanding specific documents: discrimination claim
- Different document standards for different employees: discrimination
ICE audits: when notified, you have 3 business days to produce I-9s for inspection.
Reverification
Some I-9 documents have expiration dates. Employer must REVERIFY when:
- An EAD expires (most common for foreign workers)
- A temporary I-94 record expires
- Specific List A or B documents expire that employee chose
Reverification rules:
- New Section 3 completed before old authorization expires
- Employee presents new acceptable documents
- Employer documents the new info
Permanent Resident Cards (Green Cards) DO NOT require reverification - the card may show expiration date, but the underlying lawful resident status doesn't expire.
US passports + birth certificates: no reverification.
Discrimination boundaries
Federal law prohibits:
- Refusing to hire based on national origin OR citizenship status (with very narrow exceptions)
- Demanding specific documents
- Refusing to accept documents that appear genuine
- Using E-Verify on existing employees (E-Verify is for new hires only OR specific federal contract requirements)
Stay neutral; let employee choose documents from acceptable lists; treat all employees the same way.
Anti-discrimination + IRCA (Immigration Reform + Control Act)
Federal law: employers cannot discriminate based on national origin / citizenship in:
- Hiring
- Firing
- Recruitment
- Document requests
The Department of Justice Office of Special Counsel (OSC) enforces.
The "unauthorized worker" rule + the "non-discrimination" rule must BOTH be respected. They can conflict. When in doubt, document everything + treat employees consistently.
NEVER demand specific I-9 documents from an employee. The employee chooses which acceptable documents to present from Lists A, B, or C. Demanding a specific document (e.g., "I need to see a Social Security card") = discrimination + IRCA violation. The penalty isn't worth the convenience. Accept what the employee presents; if it's on the acceptable lists + appears genuine + relates to the bearer, you're done.
State immigration requirements
Several states have stricter requirements:
- Arizona, Alabama, Mississippi: mandatory E-Verify for all employers
- Georgia, North Carolina, South Carolina, Utah: E-Verify for some employer categories
- Florida: E-Verify for employers with 25+ employees (2023+)
- Texas, Tennessee: E-Verify for certain government contracts
State requirements typically supplement federal - both apply.
Foreign worker categories
Service businesses occasionally hire workers on:
References
- USCIS I-9 (uscis.gov/i-9) - current form + handbook
- E-Verify (e-verify.gov)
- USCIS Handbook for Employers (M-274)
- State employer requirement summaries (varies)
- Manuall internal: Payroll Setup for Service Business, Hiring Your First Technician