Form I-9: New Guidance to Verify Work Authorization

When a new hire provides federally-required Form I-9 documentation that indicates they’re authorized to work in the U.S., how do you know that it’s legitimate?

This question becomes even more critical for E-Verify-enrolled employers hiring remote employees when in-person verification isn’t possible. E-Verify businesses that remotely/electronically inspect documentation due to hiring employees outside the local area are also at risk for being fooled by fraudulent documentation.

Since the new Form I-9 was rolled out last year, so many employers have been asking U.S. Citizenship and Immigration Services (USCIS) about List C Form I-9 documents (which include Social Security cards and birth certificates) that the agency updated its guidance.

Additional information on acceptable documents, as well as sample images of documents from List C Item #7 — which is employment authorization specifically issued by the Department of Homeland Security (DHS) — are now easier to find on the I-9 Central site and in the federal M-274 Handbook for Employers.

Passing the Form I-9 List C Test

USCIS says if you’ve been given a List C Item #7 document, you can compare what you receive from a new hire to the posted images for these DHS-issued documents:

• Form I-94, Arrival/Departure Record
• Form I-571, Refugee Travel Document
• Form I-327, Reentry Permit (unexpired), and
• Form N-560, Certificate of U.S. Citizenship or Form N-561, Replacement Certificate of Citizenship.

Keep in mind that the images you see online may be a different size than the actual documents you receive.

What About Lists A and B?

There are also reference images online and in the employer handbook for Form I-9 List A (documents which establish both identity and employment authorization), including U.S. passports, and List B documents (which establish identity), including driver’s licenses and other photo IDs.

The lists also include what qualifies as a substitute if the new hire doesn’t have the original document (click the “Acceptable Receipts” dropdown menu).

Leeway for Document Expiration Dates

To help prevent applicants from experiencing a lapse in their employment authorization, a temporary final rule published in the Federal Register increased the extension period for employment authorization documents (EAD) submitted with Form I-9.

This means certain EADs set to expire between now and up to 540 days from their original date are considered valid for I-9 purposes as long as the individuals file Form 765, Application for Employment Authorization.

The extension applies to employees who filed a renewal application:

• on or after Oct. 27, 2023, with a pending status on or after April 8, 2024, or
• during the 540-day period beginning on or after April 8, 2024 and ending Sept. 20, 2025.

Bottom line: You may need to adjust your I-9 reverification procedures to account for the extended validity of some EADs.

What the Penalties Are

Form I-9 recordkeeping compliance must be taken seriously. Penalty ranges for Immigration and Nationality Act violations assessed as of Feb. 12, 2024 are:

• $281-$2,789 per individual for paperwork violations
• $575-$11,524 per document for document fraud
• $698-$5,579 per individual for a first-time offense of unlawful hiring of unauthorized workers, and
• $973-$1,942 for failure to notify DHS of an instance when the E-Verify system can’t confirm a new hire’s work eligibility.

By the way, the fines for discrimination against someone based on their citizenship status or national origin can range from $230-$2,304 per individual for unfair document-related practices and $575-$4,610 per individual for first-time offenses of unfair immigration-related employment practices.

For more valuable information on Form I-9 compliance, check out the HRMorning on-demand webinar “I-9 Compliance Success: Must-Know Tips and Troubleshooting.”