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Ever since passage of the Immigration Reform and Control Act in 1986, employers have had to verify the employment authorization of each employee they hire. This is done with the I-9 form, a copy of which must be completed for each newly-hired employee. IRCA is enforced by the U.S. Citizenship and Immigration Services (formerly known as the INS) (https://www.uscis.gov/).

The USCIS has a handbook with detailed guidance on the I-9 form, including frequently-asked questions and answers on employment eligibility verification and I-9 forms at the following link: https://www.uscis.gov/i-9-central/handbook-employers-m-274.

The main things for employers to keep in mind about I-9s are:

The latest version of the I-9 form (October 21, 2019) is available on the USCIS Web site at https://www.uscis.gov/i-9 (PDF). Following is a list of the acceptable documents as they appear on the most recent Form I-9 (all documents must be unexpired):

List A - Documents that Establish Both Identity and Employment Authorization

  1. U.S. Passport or U.S. Passport Card
  2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
  3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa
  4. Employment Authorization Document that contains a photograph (Form I-766)
  5. For a nonimmigrant alien authorized to work for a specific employer because of his or her status:
    1. Foreign passport; and
    2. Form I-94 or Form I-94A that has the following:
      1. The same name as the passport; and
      2. An endorsement of the alien's nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form.
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

List B - Documents that Establish Identity

  1. Driver's license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  2. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  3. School ID card with a photograph
  4. Voter's registration card
  5. U.S. military card or draft record
  6. Military dependent's ID card
  7. U.S. Coast Guard Merchant Mariner card
  8. Native American tribal document
  9. Driver's license issued by a Canadian government authority

  10. (For persons under age 18 who are unable to present a document listed above:)
  11. School record or report card
  12. Clinic, doctor, or hospital record
  13. Day-care or nursery school record

List C - Documents that Establish Employment Authorization

  1. A Social Security Account Number card, unless the card includes one of the following restrictions:*
  2. Certification of report of birth issued by the Department of State (Forms DS-1350, FS-545, FS-240)
  3. Original or certified copy of birth certificate issued by a State, county, municipal authority, or territory of the United States bearing an official seal
  4. Native American tribal document
  5. U.S. Citizen ID Card (Form I-197)
  6. Identification Card for Use of Resident Citizen in the United States (Form I-179)
  7. Employment authorization document issued by the Department of Homeland Security

The I-9 list quoted above is based on the most recent version of the underlying USCIS regulation, found in 8 C.F.R. 274a.2(b) (revised effective May 14, 2020), which is online at https://www.ecfr.gov/cgi-bin/text-idx?SID=72ff3c980252210c71a18bce1ce2a66b&mc=true&node=se8.1.274a_12&rgn=div8.

Receipts and Reverification of Documents

8 C.F.R. § 274a.2(b)(1)(vi)(A) provides that unless the employment is for less than three business days, a receipt for a lost, stolen, or damaged document will suffice for I-9 purposes as long as the replacement document itself is presented within 90 days of hire or, in the case of reverification, no later than the expiration date of the reverified document. The receipt is not acceptable, though, if the employer has actual or construction knowledge that the employee is not authorized to work in the United States. Other receipts that are acceptable with restrictions are the arrival portion of the Form I-94 or I-94A containing an unexpired Temporary I-551 stamp and photograph, or the departure portion of Form I-94 or I-94A with an unexpired refugee admission stamp. For details on receipts, see Section 4.4 of the I-9 Handbook for Employers (M-274).

ID cards (included in the List B documents) often cause confusion. A frequent issue is whether a driver's license is required, or some other form of ID can suffice. A related issue is whether ID cards with expiration dates must be reverified upon expiration. First, the ID document listed first in List B does not have to be a driver's license - it can be any government-issued ID card, even a parolee's ID card if the date of birth, gender, height, eye color, and address are on it. Second, regarding reverification of expired ID cards, as the note on the top of page 3 of the latest I-9 form specifies, "all documents must be unexpired" when presented for verification. However, the only expirable documents that require a tickler-based reverification procedure are those that involve work authorization, not identity. Thus, the DHS documents that expire would have to be reverified upon expiration, i.e., new, unexpired documents would have to be presented. If a document used only for identity purposes expires, that does not require reverification. See Section 6 of the I-9 Handbook for Employers (M-274), which includes the following statement: "Reverification is never required for U.S. citizens or noncitizen nationals. Reverification is also never required when the following documents expire: U.S. passports, U.S. passport cards, Form I-551 (Alien Registration Receipt Cards/Permanent Resident Cards, which are also known as Green Cards), and List B documents."

* SSA regulation 20 C.F.R. § 422.103(e)(3) - "Restrictive legend change defined. ... This restrictive legend appears on the card above the individual's name and SSN. Individuals without work authorization in the U.S. receive SSN cards showing the restrictive legend, 'Not Valid for Employment'; and SSN cards for those individuals who have temporary work authorization in the U.S. show the restrictive legend, 'Valid For Work Only With DHS Authorization'. U.S. citizens and individuals who are permanent residents receive SSN cards without a restrictive legend. ... ."

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