What is it?

Form I-9 (Employment Eligibility Verification) requirements stem from the Immigration Reform and Control Act of 1986. This act prohibits employers from hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment. Employers are also prohibited from continuing to employ an individual knowing that he or she is unauthorized for  employment. This law also prohibits employers from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.

Who must fill out the form?

Employers are required to complete and retain a form I-9 for every employee they hire for employment in the United States, except for:

• Individuals hired on or before November 6, 1986 who are continuing in their employment
• 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.

The process

The I-9 form consists of three sections:

• Section One: Employee information and attestation (completed by employee)
• Section Two: Employer review and verification (completed by employer or authorized representative)
• Section Three: Reverification and Rehires (completed by employers for employees who are rehired or whose employment authorization requires reverification)

Section 1

When completing Form I-9, you must make available to your employee the complete instructions to the form and the list of acceptable documents. Your newly hired employee must complete and sign Section 1 of Form I-9 no later than their first day of employment.

You may have your employee complete Form I-9:

• On their first day of employment for pay
• Before their first day of hire, if you have offered the individual a job and if they have accepted the offer

Employee responsibilities for Section 1

Employees can have help completing Section 1, including using a translator.

Employees must provide their:

• Full legal name
  • if the employee has two last names (family names), include both. If the employee has two first names (given names), include both
  • if the employee only has one name, enter it in the Last Name field, then enter “Unknown” in the First Name field
  • If the employee hyphenates his or her first or last names, include the hyphen (-) between the names
  • Include the middle initial, if the employee has a middle name
• Other names used, if applicable, such as maiden name
• Current address, including street name and number, city state and ZIP code. Include the apartment number or letter if applicable
• Date of birth
• Check mark next to the appropriate box to indicate whether they are a U.S. citizen or noncitizen national, lawful permanent resident of the U.S., or alien authorized to work in the U.S.
• Alien Number/USCIS Number, Form I-94 admission number, or foreign passport number, including country of issuance
• Signature and date

Employer responsibilities for Section 1

You must:

• Review the information your employee provided in Section 1
• Ensure that your employee provided information in all required fields (note: your employees are not required to provide a Social Security Number in Section 1)
• Ensure your employee signed and dated the form
• Ensure the Preparer or Translator section has been completed, signed, and dated if your employee used a preparer or translator

In addition:

• You should note whether your employee indicated in Section 1 that their employment authorization will expire.
• You may need to reverify your employee’s authorization when it expires. You may want to remind your employees at least 90 days before the expiration date that they will need to present a List A or List C document to show continued employment authorization for reverification purposes. Employees must present these documents on or before the date their current employment authorization expires.
• The expiration date for employment authorization provided by your employee in Section 1 may or may not match the expiration date of the List A or List C document your employee presents for Section 2. The earlier date should be used for verification purposes.

Section 2

Employers must complete and sign Section 2 of Form I-9 within 3 business days of the date of hire of their employee.

Employee responsibilities for Section 2

Employees must present unexpired original documentation that shows the employer their identity and employment authorization. Your employees choose which documentation to present.

Employees must present:

• One document from List A; or
• One document from List B in combination with one document from List C

Note:

• List A contains documents that show both identity and employment authorization
• List B documents show identity only
• List C documents show employment authorization only

Employer responsibilities for Section 2

An employer or an authorized representative of the employer completes Section 2. Employers or their authorized representatives must physically examine the documentation presented by the employee and sign the form.

The employer or authorized representative must:

• Enter the employee’s last name, first name, middle initial, and select the correct citizenship/immigration number in the “Employee Info from Section 1” area at the top of Section 2
• Ensure that any document your employee presents is original and on the list of acceptable documents, or is an acceptable receipt
• Physically examine each document to determine if it reasonably appears to be genuine and to relate to your employee presenting it. If you determine the document does not reasonably appear to be genuine or relate to your employee, allow your employee to present other documentation from the List of Acceptable Documents
• Enter the document title, issuing authority, number, and expiration date from the original documents your employee presented
• Enter the date your employee began or will begin work for pay
• Enter the first and last name, signature, and title of the person completing Section 2, as well as the date the Section was completed
• Enter the employer’s business name and address. If your company has multiple locations, use the most appropriate address, such as where Form I-9 is completed
• Return the documentation presented back to the employee

Section 3

Employers must complete Section 3 when an employee’s employment authorization or documentation of employment authorization has expired.

Employers may complete Section 3 when an employee is rehired within 3 years of the date that the Form I-9 was originally completed, or the employee has had a legal name change.

Employers should not reverify:

• U.S. citizens and noncitizen nationals
• Lawful permanent residents who presented a Form I-551, Permanent Resident or Alien Registration Receipt card for Section 2. This includes conditional residents.
• List B documents

Rehires

If you rehire an employee within 3 years of the date that a previous I-9 form was complete, you may either complete a new Form I-9 for your employee or complete Section 3 of the previous I-9.

To complete Section 3 for rehires, you must:

• Confirm that the original Form I-9 relates to your employee
• Review the original Form I-9 to determine if the employee is still authorized to work, including whether employment authorization documentation presented in Section 2 (List A or List C) as since expired.
• If your employee is still authorized to work, enter the date of rehire in the space provided in Section 3.
• If the employee is no longer authorized to work or the employment authorization documentation has since expired, request that the employee present an unexpired List A or List C document. Do not reverify an employee’s List B (identity) document. Enter the document information and the date of rehire in the spaces provided in Section 3. If the current version of Form I-9 is different from the previously completed form, you must complete Section 3 on the current version
• Sign and date Section 3.

An amendment to Oregon’s previous social media law will go into effect January 1, 2016. It makes it unlawful for employers to do any of the following:

• Require or request that an employee or an applicant establish or maintain a personal social media account.
• Require that an employee or applicant authorize the employer to advertise on a personal social media account.
• Take or threaten to take any adverse action against an employee for refusing to establish or maintain a personal social media account.

As before, employers may not require or request that an employee disclose any personal social media user names or passwords. As before, if employers need to conduct an investigation, they may require an employee to share content that has been reported to the employer and that is necessary for the employer to make a factual determination about the matter under investigation.

Effective January 1, 2016, House Bill 3025 makes it unlawful for an employer to exclude an applicant from an initial interview solely because of a past criminal conviction. Under the new law, an employer cannot require an applicant to disclose a criminal conviction on a job application or otherwise prior to an initial interview or, if no interview is conducted, prior to making a conditional offer of employment. Of course, employers may still consider an applicant’s conviction history when making a hiring decision.

Portland recently passed its own “Ban the Box” rules that will go into effect July 1, 2016. As of that date, most employers in Portland with more than six employees will be required to wait until after making a conditional job offer before asking about a prospective employee’s criminal history. Additionally, the employer may not consider arrests that didn’t lead to a conviction, criminal histories that were expunged, or charges that were dropped because the applicant participated in a diversion program for crimes that didn’t involve physical harm or attempted physical harm.