Form I-9

Form I-9 is used for verifying the identity and employment authorization of individuals hired to work in the United States. All U.S. employers must ensure proper completion of Form I-9.

  • Employees AND employers (or employers’ authorized representatives) must complete the I-9.
  • This includes an employee’s attestation to his or her employment authorization and an employee’s presentation of acceptable documentation.
  • Exceptions: individuals hired on or before Nov. 6, 1986; individuals hired in the Commonwealth of the Northern Mariana Islands 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 (i.e. employee leasing or temporary agencies); individuals not physically working in the United States.

Employer must complete the Form I-9 within three (3) business days of the employee’s start date. The employee can complete Section 1 only of the Form I-9 (the section that has their personal information) in advance of the start date if they have received an offer of employment.

E-Verify

E-Verify is an online employment verification system operated by USCIS in partnership with the Dept. of Homeland Security (DHS) and the Social Security Administration (SSA). The program is voluntary in most instances and there is no fee.

The E-Verify program is used by employers to verify the employment authorization of newly hired employees. Information about past employees or individuals currently employed is not run through the E-Verify system.

Employers use a combination of information from the new employee’s Form I-9 plus other data that is input into E-Verify. E-Verify confirms whether the new employee is authorized to work and whether the Social Security number provided by the employee matches the SSA’s database. If there is any inconsistency between the documents the employee provided and the information they provided to the employer on the Form I-9, the employer is notified.

It is important to note that E-Verify is voluntary and is not the law; the completion of the Form I-9 is the legal requirement.

While using E-Verify is generally voluntary, there are circumstances where it is required. Companies that employ individuals on STEM OPT must be enrolled in E-Verify and must actively maintain their account. Some states require all employers to use E-Verify, and other states require it only if the company works on state or local government contracts. Companies that employ federal contractors or work on certain federal contracts often have to use E-Verify.

An employer may opt to withdraw from E-Verify by notifying USCIS and waiting 30 days.

Employers who enroll in E-Verify must use it only for employees hired after the date the company enrolled in E-Verify. Employers must not use it to check the employment authorization of current or previously hired employees.

Public Access File for applications requiring a Labor Condition Application (LCA)

Each time an employer files a Labor Condition Application (LCA) with the Dept. of Labor in connection with an H-1B, H-1B1, or E-3 visa petition, it must create and maintain a “Public Access File” for several documents related to the LCA.

This Public Access File should be kept separate from Foreign National’s personnel file and must contain:

  • The two (2) posting notices that were placed at the worksite for 10 business days, notifying all workers of the job role that required the LCA;
  • The signed and certified LCA;
  • The LCA cover pages, Form ETA 9035CP;
  • Documentation used to establish the prevailing wage for the job position;
  • Memo describing how the Actual Wage and/or pay scale was determined for the position;
  • Summary of benefits offered to U.S. workers who are in the same classification as the Foreign National employee; and
  • Certification that the Foreign National employee was given a copy of the signed and certified LCA.

The Public Access File must be created within one working day after the date on which the LCA is filed with the DOL, and it must be kept either at the principal place of business or the employee’s place of employment.

The Public Access File must be retained and maintained for one (1) year following the last date the Foreign National was employed in the relevant visa status under the LCA. If the Foreign National’s employment ends prior to the end date of the LCA, or if no nonimmigrant is employed pursuant to the LCA, the LCA should be withdrawn. If the LCA is withdrawn, the employer must continue to maintain the Public Access File for one (1) year from the withdrawal date.