Critical Information You Need to Know About a Form I-9

One of the most important documents an employer needs for its workers is the Form I-9 Employment Eligibility Verification. The form is designed to comply with U.S. immigration laws by allowing employers to hire only those legally authorized to work in the United States.

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Because of its importance, the Form I-9 may seem complicated. But the rules are simple with valid documentation and guidelines set up by the U.S. Citizenship and Immigration Services (USCIS).

Employers are encouraged to download the Handbook for Employers M-274, but should keep in mind the lengthy manual updates often. The USCIS also has an extensive website with current information, forms, webinars, and more.

How to Read the Form I-9

The first thing all contractors should know is that the Form I-9 was updated on 8/1/2023.

Employee Information

Section 1 must be populated by the first day of work for pay. It can only be completed by the employee, and while instructions come in English and Spanish, it must be submitted and saved in English. Other tips:

• The Social Security Number field is only required if the employer participates in E-Verify. Fields for email address and phone number are optional.
• Acceptable documents from List A or both Lists B & C must be presented to the employer by the 3^rd business day after the first day of work for pay.

Employer Information

• Employers should complete Section 2 by the 3^rd business day after the first day of work for pay.
• The form may not be used to prescreen employees or check immigration status and is valid only after an employment offer has been made.
• Employers may reject documents that don’t reasonably appear genuine but cannot request specific replacement documents.

The form was updated in 2024 with a checkbox to indicate an employer remotely examined identity and employment authorization documents under an alternative procedure, such as a video conference.

While some companies prefer to create and retain a paper Form I-9, these forms are quickly moving to the wayside with more electronic means.   

E-Verify Process for Form I-9

If you’ve started a new job in the last few years, you may not recall ever filling out a paper I-9. In 1996 E-Verify was created to help employers confirm employee work eligibility faster and easier, often with use of an electronic Form I-9. Regulations are constantly changing, but currently, nearly half of American states have legislation requiring E-Verify use in some form.

E-Verify is a free, web-based service that electronically verifies new employees, or existing employees on federal contracts with the Federal Acquisition Regulation Clause (FAR). While it’s not a replacement for the form I-9, it’s seen as another tool to show companies are striving towards compliance.

Reasons to Use E-Verify

• Ensure a legal workforce.
• Protect jobs for authorized workers.
• Deter document and identity fraud.
• Eliminate human error on the Form I-9.

For companies using E-Verify

• A Social Security card is not a required document if others are available, but the Social Security Number must be included on the I-9 form for E-Verify entry.
• An E-Verify case must be created by the third business day following the first day of work for pay. Once submitted, E-Verify compares records to DHS & SSA and provides a result.
• Employee email addresses and phone numbers must be entered in E-Verify if provided on the I-9. To protect the integrity of employee information, employers cannot enter a company email address.
• Employers cannot use the system selectively – all new hires and FAR employees must be checked.
• If enrolled, employers must display the E-Verify Participation Poster and Right to Work Poster showing employees where to direct questions regarding discrimination.

How I-9 & E-Verify Work Together

• Once a case is submitted, E-Verify compares records to Department of Homeland Security (DHS) & Social Security Administration (SSA) records and provides a result.
• Authorized results must be retained for a set time period according to the law. The best practice is to record the verification number on the I-9 or print the Case Details Report and attach it to the I-9.
• Tentative Non-Confirmation (TNT) results, often called a mismatch, require additional steps to determine the reason and correct errors.
• Employers cannot influence or coerce an employee’s decision to resolve a mismatch, or terminate or take adverse action to a TNT until the case is closed. Employers cannot request additional documentation after a mismatch.
• Employees hired in advance can be entered into E-Verify up to 90 days before the start of work.
• A permanent resident card, employee authorization document, or U.S. passport or passport card all trigger a photo match in E-Verify to reduce document fraud, and must be photocopied and saved.

Tentative Non-Confirmations

When entering I-9 information into E-Verify, any section that could trigger mistakes will prompt “Are you sure?” Occasionally, though, an error can still occur and create a tentative non-confirmation (TNT). There are 3 types of TNTs:

1. SSA Mismatch
2. DHS Mismatch
3. DHS and SSA Mismatch

Why Records Might Not Match

A TNT is not a reason to panic as there can be several reasons the records don’t match. Some legitimate ones:

• The Social Security number doesn’t match (typed wrong or recorded wrong with the SSA).
• A citizenship or immigration status change was not reported.
• A name change was not reported.
• Information was not entered correctly.

TNT Steps to Follow

With a TNT, the USCIS has specific steps employers and employees must follow:

• The employer must notify the employee and complete the referral process within 10 federal government working days. A signed notice must be saved with the I-9.
• Employers must print the Further Action Notice and review it with the employee promptly and privately.
• Employees decide whether to take action to resolve the TNT.
• An employer provides the referral date confirmation for employees who take action. The referral date triggers a notice to the appropriate agency.
• The employee visits SSA or calls DHS, or both, to research and resolve the issue.
• Employees who decide not to act can be terminated and the background should be noted.
• Employers receive updated results in E-Verify and can close the case.

FAR E-Verify Clause

The Federal Contractor Rule, including the Federal Acquisition Rule (FAR) E-Verify clause, affects companies awarded federal contracts on or after 9/8/2009. Government contracting officials – not E-Verify – decide if a federal contract qualifies for the FAR clause, which makes using E-Verify mandatory.

Even if they’re already enrolled, contractors are urged to visit E-Verify.gov, click on the Employers section at the top, and check their requirements. Here they learn how to edit their company profile to affirm they’re a federal contractor, and how to stay compliant.

After enrolling or updating their profiles, contractors must either:

• Verify new hires and existing employees assigned to the federal contract within 90 days, or
• Verify their entire workforce within 180 days.

E-Verify +  “The Future of E-Verify”

Previously known as E-Very Next Gen and E-Verify+, which is being rolled out in phases in 2024, was designed to modernize and streamline the process for both employers and employees. The USCIS hopes it leads to:

• Fewer data entry errors
• Improved efficiency
• Fewer Further Action Notices

While features may change as it develops, it’s currently designed for employees to share personal information and documentation electronically via a secure myE-Verify account.

MyE-Verify is triggered after a job offer when an employee receives a unique link to the case created by the employer. Once information is populated, E-Verify confirms identity and employment eligibility and notifies the employer. The employer reviews the information, signs the document, and retains the I-9.

In addition to controlling their own information, E-Verify+ allows employees to carry over their employment status to new employers. While it can be overwhelming to complete all of these forms plus tax forms for contractors and more, it is a requirement of the federal government.

FAQ: Navigating Form I-9, E-Verify, and Employment Compliance”

The material presented here is educational in nature and is not intended to be, nor should be relied upon, as legal or financial advice. Please consult with an attorney or financial professional for advice.