Employer Compliance

Who Needs Form I-9?

According to USCIS, all employers must complete and retain Form I-9, Employment Eligibility Verification, for every person they hire for employment on or after Nov. 6, 1986, in the U.S. as long as the person works for pay or other type of payment.

Additional guidance for certain employees that fall into special categories is found below:

Domestic workers: Individuals who perform child care, household tasks, and/or upkeep of a home or surrounding yard on a regular basis in return for wages or other benefits, and who are not independent contractors or providing services on a sporadic basis or for independent contractors or separate businesses. If you use the services of a domestic worker, you generally must complete Form I-9, Employment Eligibility Verification, for the domestic worker except if they are providing services that are sporadic, irregular or intermittent, or employed by a domestic service company (for example a maid service) or agency employing temporary domestic workers. Regardless of who completes Form I-9, employers or persons using contract services must not employ or use the services of a domestic worker knowing that person is not authorized to work in the U.S.

Minors: Individuals under the age of 18. A parent or legal guardian may establish identity for a minor under the age of 18 to complete Form I-9 if the minor cannot present a List B document.

Employees with disabilities: Individuals with physical or mental impairments that significantly limit one or more major life activities and are placed in a job by a nonprofit organization or association, or as part of a rehabilitation program. A representative of a nonprofit organization, association or rehabilitation program, a parent, or a legal guardian may establish identity for an individual being placed into employment by a nonprofit organization or association or as part of a rehabilitation program if the individual cannot provide a List B document.

Temporary Protected Status (TPS) beneficiaries: Certain individuals from specific foreign countries beset by extraordinary and temporary conditions such as natural disasters and civil wars. The Secretary of Homeland Security may designate a foreign country for Temporary Protected Status (TPS)  if conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, if the country is unable to handle the return of its nationals adequately.  USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States.  Eligible individuals without nationality who last resided in the designated country may also be granted TPS.

Asylees and refugees: Non-U.S. citizens who typically have left their own country and are unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Foreign students: Individuals coming temporarily to the U.S. to pursue a full course of study in an approved program in either an academic or vocational institution, or a recognized nonacademic institution. (Academic institutions include colleges, universities, seminary, conservatories, academic high schools, elementary schools, other institutions, and language training programs.) Depending on the type of student and type of employment, the student will be issued different documents that show employment authorization

Exchange visitors: Individuals coming temporarily to the U.S as participants in exchange programs administered by the U.S. Department of State. Examples of exchange visitors are:

  • Trainees
  • Professors or scholars
  • Students
  • Specialists
  • International visitors
  • Teachers
  • Research assistants
  • Physicians
  • Individuals in summer work travel programs
  • Individuals in au pair programs
  • Camp counselors

E-Visa holders: Treaty traders and investors who are citizens or nationals of a country that has a treaty of commerce and navigation with the U.S. and who come to the U.S. under such treaty, including:

  • Treaty Traders (E-1) and Treaty Investors (E-2)

Treaty traders pursue substantial trade in goods, including but not limited to services and technology, principally between the U.S. and the foreign country of which they are citizens or nationals. Treaty investors direct the operations of an enterprise in which they have invested, or are actively investing, a substantial amount of money.

Before entering the U.S., treaty traders or investors must apply for and receive an E-1 or E-2 visa from a U.S. Consulate or Embassy overseas. However, a U.S. company may also request a change of status to E-1 or E-2 for a nonimmigrant that is already in the U.S. USCIS processes change of status and extensions of stay requests for nonimmigrants whose companies have filed such petitions.

  •  Australian Specialty Occupation Worker (E-3)

Australian specialty occupation workers perform services in a specialty occupation. Before entering the U.S., Australian specialty occupation workers must apply for and receive an E-3 visa from a U.S. Consulate or Embassy overseas. However, a U.S. company may also request a change of status to E-3 for a nonimmigrant who is already in the U.S. USCIS processes change of status and extension of stay requests for nonimmigrants whose companies have filed such petitions.

NAFTA (TN) workers: Professionals and other workers from Canada and Mexico coming temporarily under the North American Free Trade Agreement (NAFTA) which created special economic and trade relationships for the U.S., Canada and Mexico. The TN nonimmigrant status allows professionals from Canada and Mexico to work in the U.S. Mexican professionals must obtain a TN visa at a U.S. Consulate or Embassy to enter the U.S. Canadian professionals can request TN status at a U.S. port of entry.

Temporary nonimmigrant workers: Individuals coming to the U.S. lawfully as nonimmigrants to work temporarily in the U.S. Employers must generally file a petition, Form 129, Petition for a Nonimmigrant Worker, with USCIS to legally hire a nonimmigrant as a temporary worker.

Mergers and acquisitions: Employers’ Form I-9 responsibilities may be affected when they are acquired by another company or merge with another company.

Employees resuming their job after a temporary break in employment: Individuals may be considered to be continuing in employment (with no new Form I-9 required) if, for example, they return to work after taking approved paid or unpaid leave or being laid off.

 

In some cases, employers do not need to complete or keep a Form I-9.

  • Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times (with some limitations). Also excepted are individuals hired for employment in the Commonwealth of the Northern Mariana Islands (CNMI) on or before Nov. 27, 2009.
  • Individuals employed for casual domestic work in a private home on a sporadic, irregular or intermittent basis.
  • Independent contractors or individuals providing labor to you if they are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).
  • Individuals not physically working in the U.S.

Federal law prohibits individuals or businesses from contracting with an independent contractor knowing that the independent contractor is not authorized to work in the U.S.

 

An agency may complete Form I-9 before one of its workers accepts a particular assignment, even if:

  • The worker has not yet been offered or accepted an actual assignment.
  • There is the possibility that no actual work may arise from the arrangement.