Form I-9 and E-Verify: United States right to work process (including remote document review)

## What is it Form I-9, Employment Eligibility Verification, is a form used to verify the identity and employment authorisation of individuals hired for employment in the United States. ## What is it needed for The Immigration Reform and Control Act of 1986 (IRCA) places responsibility and the legal burden on employers in the United States to verify the employment eligibility and identity of all the employees they hire (codified at [8 U.S.C. § 1324a(1)(B)](https://www.law.cornell.edu/uscode/text/8/1324a)). This form is required as part of determining if an employee has the authority to work in the United States. ## Form I-9 Two of the three main requirements (the third being anti-discrimination provisions) established for employers by the IRCA pertain to the Form I-9. ### Requirement 1: Complete the Form I-9 Employers must: 1. Ensure each new employee completes and signs Section 1 of the Form I-9 by their **first** day of work. 2. Review acceptable documents showing identity and employment authorisation **and**: - confirm the documents appear to be genuine and relate to the employee; and - complete and sign Section 2 of the Form I-9 within three days of hire (for employees whose employment will last fewer than three days, this must be done on the first day). Employees may present **either** one document from List A **OR** one document from List B **and** one document from List C. Note that employers generally cannot require that new hires provide any one particular type of acceptable documentation, since doing so may amount to discrimination. Until the pandemic, employers had to physically examine the documents provided by an employee. Following the July 2023 expiry of the temporary measures which allowed employers to defer in-person document review under certain circumstances during COVID, Immigration and Customs Enforcement (ICE) published a new rule permitting the Department of Homeland Security (DHS) to create alternate procedures to the in-person review requirement from August 2023. At the same time, ICE also introduced the first route through which employers could utilise this new remote verification option: **the E-Verify system**. ICE has also requested feedback from the public on a proposed pilot program that permits remote verification for non-E-Verify qualified employers but so far E-Verify is the only permitted route for **remote** verification. E-Verify participation is mandatory for some employers and voluntary for others. E-Verify and the criteria that employers must meet in order to qualify for the program is detailed in a later section but it is crucial to note that using E-Verify, or any alternative procedure, **does not** replace completing the Form I-9. When electing to use an alternative procedure, qualified employers must follow the steps in **1(a): Completing the Form I-9 for E-Verify** and do so within **three** days of the employee's first day of employment. ICE states that an employer may not refuse to conduct an in-person examination of the documents if the employee requests that in place of the alternative. 3. Reverify employment authorisation for employees with expiring documents by the expiration date. Employers must update and retain Forms I-9 for each current employee hired after November 6, 1986 and certain terminated employees. ### Requirement 2: Retain documents The Form I-9 must be retained and made available for inspection: - Employers must retain forms for whichever is longer of: - three years from hire; or - one year from termination. - Recruiters or referrers for a fee must retain forms for three years from the date the employment begins. If the alternative remote document review process was used, employers must retain the clear and legible copies submitted by employees. If employer keeps copies of the documents presented by employees, they must retain the copies with the relevant Form I-9. ## E-Verify Under some circumstances, the E-Verify program may be available to employers. The E-Verify program (as outlined in [48 C.F.R. § 22.1802](https://www.law.cornell.edu/cfr/text/48/22.1802)) serves as an Internet-based means of verifying employment eligibility, complementing **but not substituting the I-9 form**. Using E-Verify to review documents actually involves an additional step compared to the traditional, physical examination route: the employment authorisation and social security number (SSN) of each new hire is cross-referenced against DHS and the Social Security Administration (SSA) records. Resultantly, E-Verify participation provides employers with official government confirmation of their employees' authorisation to work. E-Verify participation is mandatory for some employers and voluntary for all others. Non-mandated employers can choose to use the new remote verification process, provided they: - Are enrolled in and have good standing in the E-Verify system. - Apply the new procedure only at sites enrolled in E-Verify (if not all worksites are enrolled). - Use the procedure for all new employees hired at the worksite on or after August 1, 2023, without selectively applying it to some employees. However, the employer may use the remote verification only for remote hires while continuing physical inspections for onsite or hybrid employees, ensuring this is not done for discriminatory reasons. ### Who are mandatory E-Verify participants Employers who E-Verify is mandatory for include certain federal contractors/subcontractors and employers in certain states. **Federal contractors** Employers that are performing work according to certain contracts under the Federal Acquisition Rule (FAR) must participate in E-Verify and comply with complex timing rules regarding their enrollment in and use of E-Verify. Covered contracts are called "prime" contracts, and qualifying prime contracts are those awarded or renegotiated after September 8, 2009 with: - A clause requiring E-Verify participation. - A performance period of 120 days or more. - Contract value greater than $150,000. - At least partial performance in the US. - Work beyond commercially available off-the-shelf (COTS) items and services. COTS items are those sold in substantial quantities on the commercial market, and offered to the government in the same form (or with minor modifications). The federal contractor section of the MOU specifies which employees federal contractors are required to verify and which they may choose to verify using the E-Verify system. Specifically, federal contractors: - Must E-Verify all new employees, except contractors that are institutions of higher education, federal, state or local government agencies, and certain other employers. - Must E-Verify at least some **existing** employees, electing to E-Verify either: - only those existing employees assigned to the qualifying contract; or - the employer's entire workforce. **Federal subcontractors** Subcontractors under qualifying prime contracts must also participate in E-Verify if the subcontract: - Is for services (not including those for COTS items) or construction. - Requires some performance in the US. - Is valued at $3,500 or more. **Mandatory states** Some states require certain employers to participate in the voluntary scheme of E-Verify. Unlike the mandatory federal contractor scheme, the voluntary E-Verify program does not allow employers to verify employment authorisation of current employees. Each state imposes different requirements. Depending on the state, E-Verify is required if the employer is: - A state agency. - A state contractor or subcontractor. - A private company with employees in a particular state. ## Completing the E-Verify authorisation process Once the employer is enrolled in the E-Verify system, it must submit a case for each new employee hired within the scope of the employer's enrolment in the system through the E-Verify website. The employer will receive a response from the government regarding the validity of the employee's employment authorisation and SSN. The employer must then complete the following steps within the designated timeframes. ### Step 1: Initiate E-Verify case Within three business days after the employee begins work, the employer must initiate an E-Verify case by: 1. Completing the Form I-9 (see 1(a)). 2. Obtaining the employee's SSN. - If the employee does not have an SSN, the employer must delay submitting the E-Verify case until one is received. - However, the employee is permitted to work while an SSN application is pending. 3. Creating an E-Verify case and submitting Form I-9 information, including SSN, through the E-Verify system for verification. ### 1(a): Completing the Form I-9 for E-Verify Again, using E-Verify, or any alternative procedure, **does not** replace completing the Form I-9. When electing to use an alternative procedure, qualified employers must do the following, and do so within three days of the employee's first day of employment, to ‘complete the Form 1-9’: 1. Obtain a clear and legible copy of the document or documents that satisfy the Form I-9 obligation (including both sides of any two-sided documents presented). 2. Examine the clear and legible copies to ensure that the documents reasonably appear to be genuine. 3. Conduct a live video meeting with the employee presenting the documents to ensure the documents reasonably appear genuine and related to the individual. The employee must present the documents during the live video meeting. 4. Complete the Form I-9 and check off the box indicating that the alternative procedure was used to examine documents for Section 2 (initial presentation of documents showing identity and employment eligibility) or for reverifying employment authorisation. 5. Initiate the alternative procedure. 6. Retain the clear and legible document copies (either in hard copy or electronically). It is crucial to note that what counts as acceptable I-9 documentation is different for E-Verify cases. - The employer may only accept a List B document if it has a photograph. - If presented during the Form I-9 process, the employer must photocopy: - a US passport; - a US passport card; - a green card; or - an employment authorisation document (EAD). ICE states that an employer may not refuse to conduct an in-person examination of the documents if the employee requests that in place of the alternative. ### Step 2: E-Verify system response The E-Verify system generates an immediate online response, indicating one of the following: - The employee is authorised to work. - The DHS needs additional time to review its records. - A tentative nonconfirmation (mismatch) that the SSA or DHS records cannot confirm the employee's SSN or employment authorisation. In the event of a mismatch response, the employer may **not** terminate the employee because of the result and must follow a prescribed protocol to resolve the mismatch finding. ### 2(b): Resolving a tentative nonconfirmation If the system returns a mismatch from either the SSA or the DHS: The employer must: - inform the employee; - print the mismatch further action notice and review it with the employee as soon as possible; - confirm the accuracy of the employee's information on the further action notice, which is pulled from the E-Verify system; - ask the employee if they will take action to resolve the mismatch, indicate the employee's choice on page two of the further action notice, and, together with the employee, sign the further action notice; and - provide a copy of the entire signed further action notice to the employee and retain the original with the employee's Form I-9. While the employee is still with the employer, the employer should enter the employee's election to take action to resolve or not the mismatch in the E-Verify system. If the employee: - **chooses to take action to resolve the mismatch:** the employer should print the E-Verify referral date confirmation. Together with the further action notice, it provides the employee with detailed instructions on how and by when the employee takes action to resolve the mismatch. - **chooses to not take action to resolve the mismatch:** the employer should close the case in E-Verify. The E-Verify system will show that the mismatch converts to a final nonconfirmation, and the employer may terminate the employee. The employee elects whether to take action to resolve the mismatch. If the employee does not take action to resolve the finding, the employee may be terminated. If taking action to resolve the mismatch, the employee must follow the guidance on the further action notice to resolve the discrepancy by the date shown on the referral date confirmation (within eight federal workdays of the referral date). The SSA and DHS have up to ten federal workdays to resolve the issue and update the case result in E-Verify. The employee continues to work while the case is being resolved. The employer must check the system regularly for an update. Updated results may include: - **Employment Authorised.** The employee is authorised to work. - **SSA or DHS Final Nonconfirmation.** Employment eligibility cannot be verified, and the employee may be terminated. If the employer continues the worker's employment, it may open itself to an investigation. - **SSA or DHS Case in Continuance.** The agency in question needs additional time and the employer must periodically check for updates. The employee may continue to work while awaiting a final determination. - **Review and Update Employee Data.** The SSA has found a discrepancy in the employee's information. This response often means the employer has made an error entering the SSN on the Form I-9 and E-Verify query. After correcting the information, E-Verify will return an appropriate response. - **DHS No Show.** The employee did not contact DHS within eight federal workdays. This is deemed a DHS Final Nonconfirmation, and the employee may be terminated. If the employer continues the worker's employment, it may open itself to an investigation. ### Step 3: Close the case After receiving a final response, the employer must close each case in E-Verify by indicating what action it will take regarding the employee. An employer that elects to continue employment after receiving a Final Nonconfirmation must tell DHS it is doing so, and may be subject to civil or criminal liability under The MOU or IRCA's employer sanctions. ## Best practices ### Use the correct version of the Form I-9 - Employers are obligated to use the most current version of the Form I-9 when completing the form for a new employee. Employers may be penalised if their I-9 Forms are audited and they have failed to use the most current version of the form. - Employers that use an electronic I-9 provider should ensure the form is the correct one when completing the form. - A list of every version of the Form I-9 issued since its introduction can be found at [USCIS: Self-Audits and Correcting Mistakes, Which Form I-9 Should I Use?](https://www.uscis.gov/i-9-central/complete-correct-form-i-9/self-audits-and-correcting-mistakes) ### Be cautious about accepting document copies - An employer may not accept **any** documents that are not originals. - The one exception is that a certified copy of a birth certificate, with an official seal, may be presented as a List C document showing employment authorisation. ### Do not over-document - Employers may not require or accept more documents than necessary to satisfy the Form I-9 requirements. - If an employee presents more documents than necessary, the employer should show them the list of acceptable documents and ask them to select the document or documents to complete the I-9 form. ### Have a consistent policy on keeping copies of presented documents - Employers can keep copies of the documents presented by employees, and it is advisable for them to do so as copies may be of assistance to them in future audits or if they need to defend discrimination claims. - The copies should be retained with the employee's completed Form I-9. - Any policy to copy documents or not must be applied consistently. - Employers that retain copies must still properly complete Section 2 of the form, and must maintain and retain the Form I-9. - Some employers are required to maintain documents copies. - Employers should check state laws to see if retaining copies is mandatory in their state. - Employers using the alternative remote document review process must retain clear and legible copies of the documents presented. ### Do not keep Form I-9-related documents within the employee's broader personnel file - Form 1-9s and related documents should be kept separate from the employee’s hiring and personnel files in order to avoid potential discrimination charges. ### Assign E-Verify roles and responsibilities Assign E-Verify roles and responsibilities by identifying the person who: - Signs the MOU that binds the employer to DHS and SSA. - Is the policy manager and the contact person for internal questions and concerns. - Is the public contact person for on-site inspections. - Is the E-Verify program administrator. - Is responsible for training employees authorised to use the E-Verify system. ## How do I conduct the process using Zinc To use Zinc to conduct your right to work process in the US, you will need to set up a package with a **Right to Work check** and a **Self Certification check**. Once you've sent out a request using this package, you will need to wait for your candidate to complete these checks. The employee, by **their first day of work**, must fill out and sign section 1 of the I-9 Form, providing all necessary biographic and legal information on that form. The I-9 Form is provided under our **Self-Certification check** which candidates can complete on their side so make sure to send out the request with plenty of time for the candidate to complete. With the **Right to Work check** and **Self Certification check**, we offer these as documentation **collection** services but we don't validate these documents for you. The Zinc platform can be used to perform an ID document verification on a US Passport or a US Driver's License, but the employer remains responsible for I-9 document examination (whether a physical document check or a DHS-authorised alternative procedure). Once those checks are completed in the system, you can then begin your side of the process by following the steps above for E-Verify or any alternative procedure outside of the Zinc platform. You will need to reverify employment authorisation for employees with expiring documents by the expiration date. Once completed, the Form I-9 must be retained and made available for inspection for three years from hire or one year from termination. If the alternative remote document review process was used, employers must retain the clear and legible copies submitted by employees. If employer keeps copies of the documents presented by employees, they must retain the copies with the relevant Form I-9. You can use the PDF download of the candidate's report to keep copies of the documents provided.