By Nicole Mannino Johnson, Director of Strategic Initiatives, Literacy Pittsburgh, njohnson@literacypittsburgh.org
Immigrants make up over 19% of the U.S. workforce—over 32 million out of a total of 169 million—and participate in the labor force at a higher rate than native-born workers, according to June 2024 data from the Bureau of Labor Statistics (BLS).1 With an aging population and a shrinking number of working-age adults, immigration is enabling continued economic growth in the U.S.2
Understanding how immigrants come to this country and who is authorized to work in the United States can be confusing. In our January article, we provided a broad overview of immigration pathways. The Immigration Reform and Control Act of 1986 (IRCA) requires that all employees – whether immigrant or native-born – must verify that they are authorized to work in the United States by completing Form I-9, Employment Eligibility Verification. The employer maintains the form, which must be made available upon request for inspection.3
Regulations outline specific requirements for completing, storing, and disposing of I-9 forms. Additionally, employers are encouraged to do proactive self-audits of their I-9 forms and related documents. Here are some key points adapted from the USCIS website.4,5 We offer this for informational purposes; always consult with legal counsel to ensure your company is in compliance.
Completion Timeline
Do not ask employees to complete a Form I-9 until an offer of employment has been made.
On the first day of employment, each employee must complete Section 1 of Form I-9. Section 1 includes contact information and a declaration of the individual’s immigration or citizenship status.
Section 2 must be completed no later than the third day of employment. Section 2 requires a review of specific documentation verifying authorization to work in the United States.
Form Overview
As of this writing, employers should use the 08/01/23 edition of Form I-9. This edition will have an expiration date of either 07/31/2026 or 05/31/2027.
Only employers located in Puerto Rico may complete the Spanish-language version of Form I-9 instead of the English-language version. Any employer may use the Spanish-language form and instructions as a translation tool.
Employers must ensure that employees have access to the instructions for completing Form I-9 by providing either a hard copy or a hyperlink.
Form I-9 is a fillable pdf form, which means answers can be typed directly into the form, except for the signature blocks. Employers and employees using this fillable form must print and manually sign it.
This form must be completed by employees – those who perform labor or services in the United States in return for wages or other remuneration. Individuals who do not receive any form of remuneration (e.g., volunteers), independent contractors, or those engaged in certain casual domestic employment do not need to complete Form I-9.
Be careful to refrain from discrimination against individuals based on actual or perceived knowledge of national origin, citizenship, or immigration status.
Section 1
As mentioned above, Section 1 requests basic contact information, including name, address, date of birth, and social security number issued in the U.S. Providing a 9-digit Social Security number is voluntary unless an employer participates in E-Verify. Note that employers may not ask for documentation to verify the information in Section 1. If a preparer and/or translator was used to complete this section, this individual must complete page 3 of the I-9.
Employees must verify they belong to one of the following categories:
1) A citizen of the United States, either through birth or the naturalization process.
2) A noncitizen national of the United States. These individuals were born in U.S. territories like American Samoa or Swains Island or are children of parents born in those territories. Certain former citizens of the former Trust Territory of the Pacific Islands also come under this category.
3) A lawful permanent resident is not a U.S. citizen who resides in the United States under legally recognized and lawfully recorded permanent residence as an immigrant. (i.e., a green card holder.) A conditional permanent resident should choose this option. These individuals receive a green card valid for two years and are issued based on specific circumstances.
4) A noncitizen with work authorization. This individual has authorization to work but is not a U.S. citizen, noncitizen national, or lawful permanent resident. This includes refugees and asylees who do not yet have a green card. Authorization is typically through a work permit or Employment Authorization Document (EAD).
Section 2
This section requires employers to physically examine the employee’s documents or utilize a DHS-authorized alternative procedure. Document information is recorded. Note that employers may not specify which acceptable documentation employees must produce for this section. Employees must provide one item of documentation from List A OR an item from List B and an item from List C. List A represents documents that establish both identity and work authorization. List B establishes identity, and List C confirms authorization to work in the United States. These documents are outlined on page 2 of Form I-9.
All documents must be unexpired and must be originals, not photocopies. Receipts may be used as temporary proof of employment eligibility if a document is lost, stolen, or damaged. The receipt must be issued by the originating agency, and the employee must present the actual document within 90 days of the hire date.
Federal law doesn’t require companies to keep copies of supporting documentation. However, keeping copies can help you when conducting an audit or in the event of an ICE inspection.
Retention
Employers must retain all completed pages of Form I-9. If a page is not completed it need not be retained. A completed Form I-9 must be on file for each employee on their payroll. Form I-9 and supporting documents should be stored separately from personnel files.
This documentation must be retained for three years after the hire date or one year after employment is terminated, whichever is later. Forms must be made available for inspection if requested by authorized U.S. government officials from the Department of Homeland Security, Department of Labor, or Department of Justice. You will receive a Notice of Inspection and typically have three days to produce the documents.6
Form I-9 Audit
Companies are encouraged to perform an audit of their Form I-9 records annually or more frequently if there is high turnover. An outside firm can complete this, or It can be done internally.
If Form I-9 is not found, have the employee complete the form and date it based on the date the documents were reviewed. Do not backdate it. If errors are discovered in Section 1, have the employee correct the form, initial, and date. If section 2 has errors, the person who inspected the documents should complete it if possible. The file should include a note regarding why you changed an existing Form I-9 or completed a new Form I-9. Retain the old Form I-9 with the new records.
Be transparent about the process. Let employees know you are conducting an audit. Provide them with a reasonable amount of time to correct discrepancies. Communicate in writing with employees regarding the information you need and be specific.6
This article is part six of a series by Literacy Pittsburgh with tips on hiring and retaining immigrant talent.
*Legal Disclaimer: The content provided is intended for general informational purposes only and is not intended to serve as legal advice. Literacy Pittsburgh encourages all companies to consult with their legal counsel or human resources professionals. Literacy Pittsburgh disclaims any liability for actions taken based on this document without appropriate legal consultation.
Sources
1 https://usafacts.org/articles/how-many-immigrants-are-in-the-american-workforce/
3 https://www.uscis.gov/i-9-central/form-i-9-resources/statutes-and-regulations
4 https://www.uscis.gov/sites/default/files/document/forms/i-9instr.pdf
5 https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf
Literacy Pittsburgh (formerly Greater Pittsburgh Literacy Council) helps create better lives through learning. Recognized as a national leader in adult and family literacy, Literacy Pittsburgh is the largest provider of adult basic education in Allegheny and Beaver Counties. Last year, Literacy Pittsburgh helped more than 4,000 individuals acquire the skills needed to reach their fullest potential in life and participate productively in their communities. Literacy Pittsburgh provides free, personalized instruction in workforce readiness, high school diploma test preparation, digital literacy, English language learning, math, reading, and family literacy through one-to-one and small class instruction. Founded in 1982, it serves local adults through numerous neighborhood locations and its Downtown Pittsburgh Learning Center.
