The I-9: Right to Work Checks in the US

As in the UK, employers in the US are required to take steps to verify that their employees are legally entitled to work in the US. Form I-9 is used to document the employer’s verification of the employee’s identity and authorization to work.

The I-9 has three sections. For new hires, only Sections I and II will be completed. An employee must complete Section I of the I-9 between the date of acceptance of the job offer and the end of the first day of employment. In Section I, the employee will provide certain identifying information and attest to his or her citizenship or immigration status.

Within three business days after the start of employment, the employer (or the employer’s representative) must physically examine, in the employee’s presence, certain documents chosen by the employee from the list of acceptable documents. The employer (or the employer’s representative) must then sign Section II, certifying that the documents have been examined, appear to be genuine, and relate to the employee.

Our UK clients often ask their employees to provide a copy of their US passport. This should not be done. It is unlawful to discriminate based on citizenship in the hiring process. Requesting a passport – which could only be held by a US citizen – could therefore be evidence of unlawful discrimination. It should be left solely to the employee to decide which acceptable documents to provide.

Due to Covid, temporary flexibilities were announced, pursuant to which the acceptable documents may be verified remotely for employees hired between March 20, 2020 and July 31, 2023. However, for any employee whose documents were remotely verified, the employer generally has until August 30, 2023 to reverify those documents in person. This is true even for employees who work remotely.

In July of 2023, the government announced an alternative procedure which permits certain employers enrolled in E-Verify to continue to verify the I-9 remotely, rather than in person. E-Verify is an online system that allows employers to verify a person’s right to work in the US. Although some customer contracts and local laws require the use of E-Verify, it is otherwise a voluntary system. E-Verify does not otherwise relieve the employer of the obligation to follow I-9 rules.

A completed Form I-9 is not submitted to any government agency. Instead, it is retained in the employer’s records in the event of an audit. If an employee refuses to complete Form I-9, the employee cannot be retained by the company.