Form I-9 + E-Verify Compliance

Why this matters

Form I-9 is the federal mandatory employment eligibility verification. Every employee - citizen, permanent resident, work-authorized - completes one. ICE audits I-9 records randomly + complaint-driven. Penalties. E-Verify is the optional federal database that confirms work eligibility electronically. Some states require it; the trend is toward mandatory. Get the basics right.

What I-9 does

Documents that an employer verified an employee's identity + work authorization within 3 business days of hire.

Employee completes Section 1 (their info + work authorization claim) on or before their first day.

Employer completes Section 2 (verifies documents) within 3 business days of start.

Employer retains the form for 3 years from hire OR 1 year after termination, whichever is later.

Acceptable documents

Three lists. Employee presents EITHER one List A OR one List B + one List C - employee chooses; employer cannot specify (= discrimination).

• List A (identity + work auth): US passport, Permanent Resident Card, EAD, foreign passport w/ I-94
• List B (identity only): driver's license, state ID, school photo ID, voter registration, military card
• List C (work auth only): Social Security card, US birth certificate, US citizen ID, DHS employment authorization

I-9 process flow

Day 1 (or before):

• Employee completes Section 1 (their attestation + info)
• Sign + date

Days 1 - 3 of work:

• Employer reviews documents in person (or via approved remote video for some employers)
• Documents must "reasonably appear genuine" + relate to the person presenting them
• Employer completes Section 2 (records what was reviewed + verifies)
• Sign + date

Document review standard:

• Look at original documents (not photocopies)
• Reasonable inspection - employer doesn't have to be a document expert
• Genuine + related to the bearer
• If a document doesn't look right OR doesn't match the bearer, ask for different document
• Employer can NOT demand specific documents (employee chooses from acceptable list)

Document copies:

• Employer can CHOOSE to retain copies of documents (optional; some employers do, some don't)
• If you copy, retain consistently for all employees (otherwise inconsistent practice = discrimination)
• Copies go with the I-9, not in personnel file

Storage + retention

I-9 forms must be kept SEPARATE from personnel files. ICE inspection requests JUST the I-9s - having them separate makes audit easier.

Storage options:

• Paper binder, alphabetical by last name
• Electronic I-9 system (must meet specific electronic storage standards)

Retention rule:

• 3 years after hire OR
• 1 year after termination
• Whichever is LATER

So a 2-year employee: keep for 1 year after termination = 3 years total. A 10-year employee: keep for 3 years after termination = 13 years total.

E-Verify (the next-level option)

E-Verify is an electronic system that confirms an employee's eligibility against Social Security + DHS databases.

Who must use E-Verify:

• Federal contractors (mandatory)
• State-mandated: AZ, AL, GA, MS, NC, SC, TN, UT, others - varies + expanding
• Some city-level mandates

Who uses voluntarily:

• Employers seeking additional protection from "unknowingly employing unauthorized worker" liability
• Employers in industries with high enforcement attention (construction, hospitality, agriculture)

E-Verify process:

1. Employee completes I-9 normally
2. Employer enters data into E-Verify within 3 business days
3. System returns: "Employment Authorized" OR "Tentative Non-Confirmation" (TNC)
4. TNC: employee has 8 federal working days to resolve
5. Final non-confirmation = employee NOT eligible to work; terminate

E-Verify cost: free (federal system). Time investment: ~5 - 10 minutes per hire.

Common I-9 mistakes (the audit findings)

• Section 1 not completed by employee: violation
• Section 2 not completed within 3 days: violation
• Documents not reviewed by employer signing Section 2: violation
• Mismatched information: employee name on Section 1 vs documents
• Demanding specific documents: discrimination claim
• Different document standards for different employees: discrimination

ICE audits: when notified, you have 3 business days to produce I-9s for inspection.

Reverification

Some I-9 documents have expiration dates. Employer must REVERIFY when:

• An EAD expires (most common for foreign workers)
• A temporary I-94 record expires
• Specific List A or B documents expire that employee chose

Reverification rules:

• New Section 3 completed before old authorization expires
• Employee presents new acceptable documents
• Employer documents the new info

Permanent Resident Cards (Green Cards) DO NOT require reverification - the card may show expiration date, but the underlying lawful resident status doesn't expire.

US passports + birth certificates: no reverification.

Discrimination boundaries

Federal law prohibits:

• Refusing to hire based on national origin OR citizenship status (with very narrow exceptions)
• Demanding specific documents
• Refusing to accept documents that appear genuine
• Using E-Verify on existing employees (E-Verify is for new hires only OR specific federal contract requirements)

Stay neutral; let employee choose documents from acceptable lists; treat all employees the same way.

Anti-discrimination + IRCA (Immigration Reform + Control Act)

Federal law: employers cannot discriminate based on national origin / citizenship in:

• Hiring
• Firing
• Recruitment
• Document requests

The Department of Justice Office of Special Counsel (OSC) enforces.

The "unauthorized worker" rule + the "non-discrimination" rule must BOTH be respected. They can conflict. When in doubt, document everything + treat employees consistently.

State immigration requirements

Several states have stricter requirements:

• Arizona, Alabama, Mississippi: mandatory E-Verify for all employers
• Georgia, North Carolina, South Carolina, Utah: E-Verify for some employer categories
• Florida: E-Verify for employers with 25+ employees (2023+)
• Texas, Tennessee: E-Verify for certain government contracts

State requirements typically supplement federal - both apply.

Foreign worker categories

Service businesses occasionally hire workers on:

• Lawful permanent residence (green card). Work authorized without restriction and without an employer sponsor. Do not reverify a permanent resident card at expiration; the status does not expire even though the card does
• H-2B temporary seasonal work. The visa category most relevant to trades with hard seasonality (landscaping, tree work, some construction support). It is an employer-petitioned program with a labor certification step, an annual cap, and a real lead time. Plan seasons ahead, not weeks
• Employment authorization documents. Held by people in a range of situations (pending applications, temporary protected status, certain dependents, and others). The card is what you record on the I-9, and it carries an expiration date, so it drives a reverification obligation
• TN status under USMCA, for certain Canadian and Mexican professionals. The occupation list is specific and largely professional, so it rarely covers field technician roles
• Student and exchange categories with work authorization, occasionally seen in office and support roles rather than in the field

Three rules cut across all of them. The employee chooses which acceptable documents to present; you never request a specific one or a specific status. Calendar every expiring work authorization for reverification before it lapses, and do not reverify what the rules say not to reverify. And any employer-sponsored category is immigration legal work, not HR paperwork; engage an immigration attorney before committing to a hire that depends on a petition.

References

• USCIS I-9 (uscis.gov/i-9) - current form + handbook
• E-Verify (e-verify.gov)
• USCIS Handbook for Employers (M-274)
• State employer requirement summaries (varies)
• Manuall internal: Payroll Setup for Service Business, Hiring Your First Technician