A Guide to Form I-9 Compliance for Employers

By: Min Kim and Nadine Chen

Ensuring that your workforce is legally authorized to work in the United States is both a legal requirement and a key part of protecting your business. Since November 6, 1986, every U.S. employer has been required to complete Form I-9, Employment Eligibility Verification, for all newly hired employees, whether they are U.S. citizens or noncitizens. There are only limited exceptions to this requirement, such as independent contractors, employees returning from a short leave or strike, and casual domestic workers. Regulated by U.S. Immigration and Customs Enforcement (ICE) under the Department of Homeland Security (DHS), Form I-9 serves two critical purposes: it verifies an employee’s identity and confirms their authorization to work in the United States.

How to Complete Form I-9

Form I-9 is divided into three main sections. Section 1, Employee Information and Attestation, must be completed by the new employee no later than their first day of work, though it can be filled out in advance once the job offer is accepted. Employees are required to provide their full legal name, address, date of birth, and Social Security number (if applicable). They must also attest to their employment authorization by selecting one of four status boxes. Depending on their selection, employees must present either a single document from List A (such as a U.S. passport or Employment Authorization Document) or a combination of one List B and one List C document (such as a driver’s license and Social Security card). If an employee has used other legal names, such as a maiden name, these must be disclosed as well.

Section 2, Employer Review and Verification, must be completed by the employer (or an authorized representative) within three business days of the employee’s first day of work. Employers must physically examine the original documents provided by the employee to confirm their authenticity and ensure they reasonably relate to the individual. For companies enrolled in E-Verify, certain remote document verification procedures may be used.

Employers must record document details, including the title, issuing authority, document number, and expiration date, and sign and date the form to confirm completion. Importantly, employers are prohibited from demanding specific documents or requesting more documentation than is required, as this can be considered discriminatory hiring practices.

Finally, Supplement B: Reverification and Rehire is used when an existing employee’s work authorization is about to expire or when a former employee is being rehired within three years of their previous I-9. Employers must notify employees in advance and ensure reverification is completed before their work authorization expires. Certain groups, such as U.S. citizens, lawful permanent residents, refugees, and asylees, generally do not require reverification. Temporary receipts for lost or expired documents may be accepted for up to 90 days, but employees must provide updated, valid documentation once available.

I-9 Storage and Retention

Employers are required to retain completed Form I-9s for all current employees, along with any supporting documents. For former employees, the form must be kept until three years from the date of hire or one year after termination, whichever is later. Only the pages containing employee and employer information need to be retained, not the blank instructions or unused supplement pages.

Employers enrolled in E-Verify who use remote document examination must keep clear copies of all documents presented. Records may be stored on paper, electronically, or on microfilm/microfiche, but must be made available to federal inspectors within three business days of request.

Penalties for Non-Compliance

Failure to properly complete, retain, or present I-9 forms can result in serious consequences. Civil penalties range from $234 to $2,332 per violation for first-time offenses, with higher fines for repeat violations. Criminal penalties may apply to employers who knowingly hire unauthorized workers or engage in document fraud, potentially leading to hefty fines and imprisonment. Even if an employer completes I-9 forms, they may still face liability if they knowingly employ unauthorized workers or contractors who are not legally authorized to work.

Understanding E-Verify

E-Verify is a free, web-based system administered by DHS in partnership with the Social Security Administration (SSA). Employers use it to confirm that newly hired employees are legally authorized to work in the United States. By entering an employee’s information in Form I-9, the system quickly cross-checks federal records and provides instant verification results.

For most employers, E-Verify is voluntary, but it is mandatory in nine states (Alabama, Arizona, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Utah) and for certain federal contractors. The system offers advantages such as fast results, fraud prevention, and added compliance assurance. However, employers should also be aware of the potential drawbacks of participating, including false positives or negatives, privacy concerns, and the obligation to allow DHS and SSA site visits.

Avoiding Discriminatory Practices in I-9 Compliance

While verifying work authorization is essential, employers must avoid discriminatory practices during the I-9 and E-Verify processes. Federal laws such as Title VII of the Civil Rights Act, the Immigration Reform and Control Act (IRCA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA) prohibit discrimination based on race, color, religion, sex, national origin, citizenship, age, or disability.

Employers may not request specific documents, reject valid documents, or treat employees differently based on national origin or immigration status. Even well-intentioned actions, such as asking for “extra” documents, can be viewed as discriminatory. In addition, retaliation against employees who report violations is strictly prohibited.

HR’s Role in I-9 and E-Verify Compliance

HR teams are on the front lines of employment eligibility verification. To maintain compliance, employers should appoint a dedicated I-9 compliance leader who oversees all processes. Establishing consistent company policies is essential, along with creating a reverification tracking system to ensure employees with temporary work authorization renew their documents on time. Employers should also consider centralizing I-9 recordkeeping and conducting regular internal audits to identify and correct errors proactively.

Training HR personnel on I-9 compliance requirements and E-Verify procedures is equally important. This includes understanding how to properly review documents, handle tentative non-confirmations (TNCs), and maintain secure records. Many organizations also choose to implement I-9 compliance software, which provides features like electronic signatures, error detection, and automatic reminders for reverification deadlines.

Key Takeaways

Form I-9 compliance is not optional. New hires must complete Section 1 on or before their first day of employment, while employers must complete Section 2 within three business days. Employers should never over-document or demand specific forms from employees, as this can lead to discrimination claims. Completed I-9s must be retained for the required period after an employee leaves, and employers must be prepared to present them during government inspections.

Get Expert I-9 Compliance Support

Managing Form I-9 and E-Verify compliance can be complex, but you don’t have to navigate it alone. At Chugh, LLP, our experienced attorneys help businesses of all sizes remain compliant with federal, state, and local laws. By staying compliant with I-9 and E-Verify requirements, businesses can reduce legal risks, avoid penalties, and ensure a lawful, diverse workforce.