Certain situations do not constitute a "new hire" which requires an employer and an employee to complete a new Form I-9 in addition to a Form I-9 previously completed. An employee will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times. The following are examples of employees who could be considered to be continuing in their employment (no new I-9 needed):

• The employee is on a paid or unpaid leave of absence approved by the employer.
• The employee is on a temporary lay-off due to lack of work.
• The employee is not working because a strike or other labor dispute was in progress.
• The employee was reinstated after a wrongful discharge.
• The employee is engaged in seasonal employment.

The factors considered in determining whether someone is an independent contractor include, but are not limited to, whether the individual or entity:

• Supplies the tools or materials;
• Makes services available to the general public;
• Works for a number of clients at the same time;
• Has an opportunity for profit or loss as a result of labor or services provided;
• Invests in the facilities for work;
• Directs the order or sequence in which the work is to be done;
• Determines the hours during which the work is to be done.

If the employer supervises the contractor's employees directly and provides the equipment used by the contractor's employees, such person might be considered employees of the employer and not the contractor. In such a case, the employer should verify with the contractor that Forms I-9 have been completed by the contractor and that the contractor's employees are all authorized to work in the United States . Such verification can be included in the contract between the employer and the contractor.

We recommend that employers complete new I-9s in such cases. However, an employer is allowed to complete a new I-9 when an employee is rehired within three years of the initial completion of the Form I-9, if the employee remains eligible to work. In this scenario, the employer would merely update Section 3 of the existing Form I-9 to reflect the new date of hire. However, nothing prevents the employer from completing a new I-9 if that is the employer's policy.

When the employee is being hired for employment of three days or less, the I-9 procedure must be completed by the end of the first day of employment.

Some of the most common mistakes in completing Section 1 include the following:

• Attestation Box not checked
• "A" number or work authorization date is missing
• Attestation date is not completed
• Identification information missing
• Incorrect boxes checked
• Birth date incorrectly provided as date of completion

Yes, if the employee is unable to complete Section 1 on his/her own, it may be completed with the assistance of a preparer or translator. The person must sign and date the form and give his or her name and address. The preparer must swear, under penalty of perjury, that "to the best of my knowledge the information [in Section 1] is true and correct." This space on the form may also be used if the employee is under the age of 18 or handicapped, and the employee's parent or guardian (or representative of an organization, association or program placing a handicapped employer) is confirming the employee's identity because the employee does not have suitable document establishing identity from List A or B.

Please note that the employee must sign the form in Section 1, even if it has been completed with the assistance of a preparer or translator.

No, the employer cannot specify a preference for certain documents or combination of documents, even though the employer may have doubts about the reliability of certain combinations (e.g. a driver's license and Social Security card). In particular, the employer may not require, request, or suggest that the employee produce a USCIS-issued employment authorization document that evidences the expiration date for work authorization stated by the employee in Section 1. For example, you may not require that an employee prove their status as a lawful permanent resident if they otherwise present acceptable documents (e.g. a driver's license and an unrestricted Social Security card).

To comply with the I-9 verification requirements, the employer can either accept one document from "List A" (which evidences both identity and work authorization) or one document each from "List B" (identity documents) and "List C" (employment authorization documents). The designated lists are simply a way to reference the acceptable documents used during the I-9 verification process, and are cross-referenced to the paragraph headings in the I-9 regulations.

Note that the lists of acceptable documents are subject to change and any questions regarding whether a document is acceptable under the I-9 laws should be addressed to the I-9 ServiceCenter Help Desk.

Click here to see a lists of acceptable List A documents.

Note that the lists of acceptable documents are subject to change and any questions regarding whether a document is acceptable under the I-9 laws should be addressed to the I-9 ServiceCenter Help Desk.

Click here to see a lists of acceptable List B documents.

Note that the lists of acceptable documents are subject to change and any questions regarding whether a document is acceptable under the I-9 laws should be addressed to the I-9 ServiceCenter Help Desk.

Click here to see a lists of acceptable List C documents.

Employers need to ensure that the documents presented by the employee reasonably appear to be genuine and to relate to the individual who has presented them. Employers are not required to be forensic document experts, so if the document presented meets this standard, the employer is required to accept it.

The employer is required to review the original verification documents to assure that they appear genuine. To assure that a document appears genuine, the employer should make certain that it does not have any obvious signs of being tampered with or forged. An employer is not expected, however, to be a fraudulent document expert, nor to ensure that the documents presented are genuine, only that they "appear" genuine.

The employer should proceed cautiously. If not handled correctly, the employer could be liable for penalties for knowingly employing an unauthorized worker or for document fraud, if the employer accepts the document. Conversely, if the employer refuses to accept the document, it could instead be penalized for discrimination or for requiring different or additional documents of the employee. In such situations please feel free to call the I-9 Service Center Help Desk for direction.

The employer must review the verification documents to ensure that they relate to the employee. The employer should compare the name of the employee on the documents with the name listed on the Form I-9, and should also review any descriptive information on the documents regarding the employee and make a visual comparison to the employee.

In such a case, the employer must make a reasonable judgment about the acceptability of the document. For example, if the hair color is different, a simply inquiry might show that the employee has dyed his or her hair since the document was issued. In that case the document should be accepted. If the document cannot reasonably be accepted as one that relates to the employee (e.g. it states that the employee's height is 6'2?, but the employee appears to be only 5'6? tall), this becomes a difficult issue. In such a case, please feel free to contact the I-9 Service Center Help Desk for direction.

The employer may keep copies of the documents presented by the employee with the I-9 form, but is not required to do so. Employers with established, consistent IRCA compliance policies may prefer to make copies of documents in order to establish during a government audit that the employer had a reasonable basis for concluding that the employee was eligible for employment. Maintaining copies of documents may also help the employer to avoid or reduce fines for paperwork violations. If copies are made, the regulations require they be maintained together with the Form I-9.

Possible penalties include monetary fines, criminal liability (for a "pattern and practice" of violations) and debarment for up to one year from procuring government contracts (if the offender is a government contractor).

The following penalties can be imposed on employers who have knowingly hired persons not authorized to work in the United States :

• First offense: civil fine of $250 to $2,000 for each unauthorized worker with regard to offenses occurring before September 29, 1999 and $275 to $2,200 for each unauthorized worker with regard to offenses occurring on or after September 29, 1999 .
• Second offense: civil fine of $2,000 to $5,000 for each unauthorized worker with regard to offenses occurring before September 29, 1999 and $2,200 to $5,500 for each unauthorized worker with regard to offenses occurring on or after September 29, 1999 .
• Every offense after the second offense: civil fine of $3,000 to $10,000 for each unauthorized worker with regard to offenses occurring before September 29, 1999 and $3,300 to $5,500 for each unauthorized worker with regard to offenses occurring on or after September 29, 1999 .
• A "pattern or practice" of knowingly hiring unauthorized workers: criminal penalty of up to $3,000 for each unauthorized worker, in addition to any civil penalties assessed, plus up to six months' imprisonment for the entire pattern or practice.
• Government contractors who violate IRCA's prohibitions against the knowing or continued employment of unauthorized aliens can be barred from procuring government contracts for one year.
• In addition to the civil fines, an employer will also be issued a cease and desist order requiring it to stop knowingly hiring unauthorized workers. The employer can also be compelled to participate in a USCIS I-9 verification program. The Attorney General may also obtain a temporary or permanent injunction against the employer when there is reasonable cause to believe that the employer is engaging in a pattern or practice of knowingly hiring unauthorized workers.

In addition to penalties for knowingly hiring an unauthorized worker, an employer can be subjected to penalty for the following "paperwork" violations:

• Failing to verify the employment eligibility of any employee on Form I-9.
• Failing to complete the I-9 properly for any employee.
• Failing to present the Forms I-9 to the U.S. government within the required period after a request for their review is made.
• Failing to maintain Forms I-9 for every employee for the length of time required by USCIS rules.

The USCIS utilizes factors for determining civil fines in employer sanction cases to ensure consistency in the issuance of fines. The USCIS guidelines apply to both knowing hire cases and paperwork violations. In assessing a penalty, the following five factors are listed in the regulations as being relevant:

• The size of the business of the employer
• The good faith of the employer
• The seriousness of the hiring violation or verification violation
• The involvement of unauthorized workers
• The employer's history of previous violations

The USCIS rules list several circumstances in which an employer is deemed to have knowledge that an employee is unauthorized to work. These include the following:

• If a Form I-9 is not completed in good faith for an employee who is not authorized to work in the United States ;
• It continues to employ an alien after the alien's time-limited authorization has expired and has not been renewed;
• It has information available to it that would indicate that the alien is not authorized to work;
• The employer acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.

: According to applicable regulations, knowledge cannot be inferred under the following circumstances:

• From an employee's foreign appearance or accent; and
• From rumor or hearsay in the workplace.

IRCA provides that a person or entity that establishes that it has complied in good faith with the verification requirements has established a good faith defense that the person or entity has not knowingly hired an unauthorized alien. USCIS rules provide that an employer who shows good faith compliance with the employment verification requirement establishes a rebuttable affirmative defense that the person or entity has not knowingly hired an unauthorized alien.

The law requires that the employer receive three days' notice of the government's intention to conduct an inspection of verification records. If an employer consents to an inspection on less than three days' notice, however, the government inspectors can review those records based on that consent without violating the law. The ICE Notice of Inspection will establish the date and time of the upcoming inspection.

If the government obtains a warrant, the employer will likely not receive advance notice of an I-9 inspection.

The employer should immediately contact the I-9 Service Center Help Desk if contacted by an Immigration official. In some cases, the ICE may be willing to rearrange the time and date of the inspection.

Along with the I-9 verification and sanction provisions, IRCA also contained anti-discrimination protections for workers and job applicants.

The primary purpose is to prevent employers from using the I-9 verification procedures of IRCA as a means to discriminate on an impermissible basis. Some members of Congress and public interest groups feared that certain employers might decide to avoid hiring any person who appeared "foreign" in order to avoid potential liability under the new law. Document abuse provisions, which were added in 1990, make it unfair to request more or different documents from a new employee during the I-9 completion procedure other than those required by the law.

Unlike the verification and sanctions provisions of IRCA, not all employers are affected by IRCA's discrimination provisions. Under IRCA, employers of more than three (3) employees are subject to discrimination claims. By contrast, under Title VII of the Civil Rights Act, only employers of fifteen or more employees are covered. Thus, IRCA covers those employers of between four and fourteen employees who previously had no exposure to federal anti-discrimination law.

Claims based on national origin and claims based on citizenship status.

Citizenship status discrimination occurs when individuals are not hired or are fired because of their real or perceived immigration or citizenship status, or because of their type of work authorization. U.S. citizens, refugees, asylees, many permanent residents and certain temporary residents are protected from citizenship status discrimination. U.S. citizen-only hiring policies are generally unlawful, unless the employer has a contract with a U.S. Government Agency and the work involves matters relevant to national security. Employers also may not refuse to hire refugees or asylees because their work authorization has an expiration date.

National origin discrimination occurs when an employer treats an employee or applicant differently during the hiring and firing process because of his or her place of birth, country of origin, ancestry, native language, accent, or because the individual is perceived as looking or sounding foreign. National origin discrimination claims involving the terms and conditions of employment are within the jurisdiction of the Equal Employment Opportunity Commission.

The document abuse provisions, added into the law in 1990, make it an unfair immigration-related employment practice to request more or different documents from a new employee during the I-9 procedure than are required by the law. It is also an unfair immigration-related employment practice to refuse to accept documents presented by a new employee that are sufficient under the law and that appear to be genuine on their face.

A 1996 amendment to the law mandates that an unfair immigration-related employment practice involving document abuse may be found only if the employer's request for more documents, or refusal to honor tendered documents, is "made for the purpose or with the intent of discriminating against an individual" on the basis of national origin or citizenship status.

By law, an employer is prohibited from intimidating or retaliating against any employee who has complained to the government or the employer about discrimination. Representatives of The The Immigrant and Employee Rights (IER) Section remind employers of this prohibition when they open an investigation of a company.