History Of The I-9 Employment Eligibility Verification Form

Form I-9, officially the Employment Eligibility Verification, is a United States Citizenship and Immigration Services form that became law in 1986. It was created following the Immigration Reform and Control Act of 1986 (IRCA), which made it unlawful for employers to knowingly hire or continue to employ unauthorized workers. The I-9 form is used to verify the identity and legal authorization to work of all paid employees in the United States. All employers must ensure the proper completion of Form I-9 for each individual they hire for employment in the country.

The Immigration Reform and Control Act of 1986

Legalization

The IRCA legalized most illegal immigrants who had arrived in the country before January 1, 1984. This included seasonal agricultural undocumented migrants and other undocumented migrants who entered the U.S. before January 1, 1982, and had resided there continuously. Candidates were required to prove that they had no criminal record, had been in the country before the specified date, and possessed a basic knowledge of U.S. history, government, and the English language.

Employment Verification

The IRCA made it unlawful for employers to hire or continue to employ individuals knowing that they were unauthorized to work in the U.S. It established an employment verification system, requiring employers to attest to their employees' immigration status and verify their work eligibility. This led to the creation of Form I-9, officially the Employment Eligibility Verification, which all U.S. employers must use for all employees hired on or after November 6, 1986, who are working in the country. The form requires employees to attest to their immigration status and provide documentation of their identity and work authorization. Employers must complete a section of the form within three business days of hiring an employee and keep records for at least three years.

Penalties

The IRCA established financial and other penalties for companies that employed undocumented migrants. Employers who failed to properly complete, retain, or make I-9 forms available for inspection faced fines ranging from $100 to $1,100 per individual form. For employers who knowingly hired or continued to employ unauthorized workers, civil penalties ranged from $250 to $11,000 per violation, with higher fines and potential imprisonment for those engaging in a pattern or practice of such behavior.

Impact

An estimated 3 million individuals, mostly of Hispanic descent, gained legal status through the IRCA, securing economic and social opportunities and protection from deportation. The Act also approved increased border security resources, including higher budgets for the Border Patrol and the Department of Labor, in an effort to curb unlawful crossings and unauthorized workers.

Form I-9 requirements

Form I-9, officially the Employment Eligibility Verification, is a United States Citizenship and Immigration Services form. Mandated by the Immigration Reform and Control Act of 1986 (IRCA), it is used to verify the identity and legal authorization to work of all paid employees in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and non-citizens.

The IRCA requires employers to verify that all newly hired employees present valid documentation verifying the employee's identity and legal authorization to accept employment in the United States. The I-9 form is provided by the federal government for this purpose. Every employee hired after November 6, 1986, must complete an I-9 form at the time of hire. Employees must complete Section 1 of the form upon commencing employment. The employer must complete Section 2 within three days of the employee's starting date at work. The employer is responsible for ensuring that the forms are completed properly and in a timely manner.

The I-9 is not required for unpaid volunteers or for contractors. However, a company could still find itself liable if it contracts work to a contractor it knows either is or employs unauthorized workers.

Employees must provide documentation to their employers to show their identity and authorization to work. There are three lists of documents that employees can present as proof of identity and employment authorization: List A, List B, and List C. List A documents show both identity and employment authorization. Employees presenting an acceptable List A document should not be asked to present any other document. List B documents establish identity only, and List C documents establish employment authorization only. Employees who choose to present a List B document must also present a document from List C, and vice versa.

All documents presented must be unexpired. Employers must update or reverify certain ID documents at or prior to their expiration date. This does not apply to already presented and accepted unexpired U.S. passports or Permanent Resident Cards when they reach their expiration date, nor to any List B documents (e.g., state driver's licenses and state IDs).

For U.S. citizens, I-9s are valid continuously unless a break of more than a year of employment occurs. International employees on F-1 (student), H-1B (specialty occupation), or J-1 (exchange visitor) visas must have their I-9 reverified each time their visa has expired with a new work authorization permit (renewed visa with work authorization, EAD, Permanent Residence Card, etc.).

Employers must retain a Form I-9 for all current employees. Employers must also retain a Form I-9 for three years after the date of hire, or one year after the date of employment ends, whichever is later. Employers must show their employees' I-9 form any time the immigration or labor authority requests it.

Penalties for non-compliance

Form I-9, officially the Employment Eligibility Verification, was introduced by the Immigration Reform and Control Act of 1986 (IRCA). It is a United States Citizenship and Immigration Services form used to verify the identity and legal authorization to work of all paid employees in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the country.

If an employer knowingly employs an unauthorized worker, civil penalties range from $250 to $11,000 per violation. For a pattern or practice of such violations, fines can be as high as $3,000 per employee, and the employer may also face imprisonment for up to 6 months.

Employers who fail to keep proper records that I-9s are correctly filed can be fined $110 per missing item for each form, up to $1,100 per form, even if the employee is legally authorized to work in the U.S.

An individual who knowingly commits or participates in document fraud may be fined between $375 and $3,200 per document for the first offence, and between $3,200 and $6,500 per document for subsequent offences.

ICE has conducted over 7,500 audits since 2009, imposing over $80 million in fines. In 2011 alone, ICE conducted 2,740 audits and assessed over $7 million in fines.

To avoid penalties, employers should review their I-9 procedures, train employees assigned to handle I-9 compliance, and conduct periodic internal audits.

The Immigration Act of 1990

The Act provided for family-based immigration visas, five distinct employment-based visas, and a diversity visa program. The latter created a lottery to admit immigrants from countries that were underrepresented in the US, or those that had sent fewer than 50,000 immigrants over the preceding five years. The Act also created the Temporary Protected Status (TPS) visa, which the Attorney General could grant to immigrants unable to return safely to their home countries due to armed conflict, environmental disaster, or other temporary conditions. This specifically benefited citizens of El Salvador.

The Act also lifted the English testing process for naturalization for permanent residents over 55 who had lived in the US for 15 years, and removed the exclusion of homosexuals under the classification of "sexual deviant".

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The act came into effect on April 1, 1997, and was designed to strengthen "the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system — without punishing those living in the United States legally", according to former US President Bill Clinton. However, the act has faced criticism for being overly punitive, eliminating due process from the majority of removal cases, and reducing rights to due process.

The IIRAIRA made changes to the treatment of noncitizens, including long-term legal permanent residents, who became subject to removal and deportation. Under the act, all noncitizens who overstay their visas or violate their status are ineligible for a new nonimmigrant visa. If a noncitizen overstays their visa by between 180 and 365 days, they face a 3-year bar to re-entry, and an overstay of more than 365 days results in a 10-year bar.

The act also expanded the definition of the term "aggravated felony", which was first introduced with the Anti-Drug Abuse Act of 1988. Aggravated felonies initially included murder, drug trafficking, and illicit firearm trafficking. The IIRAIRA changed the penalty so that any crime with a sentence of a year or more would be considered an aggravated felony. Any noncitizen convicted of an aggravated felony can face collateral immigration consequences, such as being barred from receiving relief from deportation.

The IIRAIRA also included provisions for bond and immigration detention, expanding the authority of the Attorney General to detain noncitizens facing removal. The act did not impose limitations on the length of detention but did restrict access to release from detention, which could be granted with a bond of at least $1,500 or on conditional parole.

In addition, the IIRAIRA established a pilot program for employment eligibility confirmation, which led to the creation of E-Verify. The act also removed documents from the list of those acceptable for Form I-9 and required that any additional documents added to List A must contain security features.

Frequently asked questions