What is Form I-9?

Every employer, for every employee hired after November 6, 1986. There is no exemption for small businesses, and no exemption for hiring US citizens — asking only foreign-looking or foreign-sounding employees to produce documents is itself unlawful discrimination.

Independent contractors are not employees, so no I-9 is required for genuine 1099 or corp-to-corp engagements. That exemption disappears the moment a worker is misclassified, which is one more reason classification matters.

For staffing agencies, the agency is normally the employer of record on W-2 placements, so the I-9 obligation is the agency's — not the client's — even though the person works at the client's site.

Section 1 is completed by the employee no later than their first day of work for pay. Not the first week, not when HR gets round to it — the first day.

Section 2 is completed by the employer within three business days of that first day. The employer must physically examine the original documents, or examine them under an approved alternative remote procedure if the employer qualifies to use one.

If an assignment is shorter than three days, both sections must be complete by the first day. This catches agencies placing people on very short assignments more often than any other rule.

The Lists of Acceptable Documents are printed with the form. List A documents establish both identity and work authorisation on their own — a US passport, a permanent resident card, an EAD. Otherwise the employee presents one document from List B establishing identity, such as a driver's licence, plus one from List C establishing work authorisation, such as a Social Security card or birth certificate.

The employee chooses which documents to present. The employer may not specify, may not demand more than the form requires, and may not reject documents that reasonably appear genuine. Over-documenting is a violation in the same way under-documenting is.

Expired documents are not acceptable. Receipts for replacement documents are, on a temporary basis and with defined follow-up.

Keep each I-9 for three years after the date of hire, or one year after employment ends, whichever is later. Many employers store them separately from personnel files, because an audit requires producing I-9s and nothing else.

Reverification is where most ongoing exposure sits. Where an employee's work authorisation has an expiry date, the employer must reverify no later than the date it expires. Permanent resident cards generally do not require reverification; employment authorisation documents usually do.

For an agency with contractors across multiple clients and assignments, that reverification date is the thing most likely to pass unnoticed. It is also the easiest to solve: hold the expiry on the employee record and alert ahead of it, rather than relying on anybody's memory.

Penalties for paperwork violations are assessed per form and adjusted annually, so a systematic error across a workforce multiplies quickly. Knowingly employing an unauthorised worker carries substantially higher penalties, and repeat conduct can bring criminal exposure.

Immigration and Customs Enforcement initiates an audit with a Notice of Inspection, and employers typically have three business days to produce the forms. Three days is not enough time to find, correct and organise several years of paperwork that was never kept properly, which is the real argument for keeping it properly.

Good-faith technical errors can often be corrected, and self-audits are generally viewed favourably. Corrections must be made transparently — strike through, write the correction, initial and date. Never erase, never use correction fluid, and never backdate.