Does Every Employee Need a Form I-9?

Employment law comprises a vast group of regulations to enforce fairness and equity in the workplace. From non-discrimination laws to rules that govern when and how companies may use background checks, complying with these rules is crucial. The government requires each employee to have a Form I-9 on file with their employer for the duration of their employment and a while after.

The Form I-9 serves as a tool to verify an individual’s employment eligibility in the United States. It is illegal to employ anyone who does not have legal authorization to work here. However, directors at companies may still experience confusion about this process. That confusion is widespread among startups, small businesses, and others just entering the marketplace. Let’s answer a central question many of those organizations have.

Is It Mandatory to Complete an I-9 With Every Employee?

Yes. Every person your business hires and employs in the United States must have a properly completed Form I-9. While there are some narrow categories where these rules don’t apply, they are rare, and they are the exception rather than the rule.

In general, you should always assume you must complete an I-9 when hiring a new individual. You cannot simply assume that an individual is authorized to work in the United States, even if you reasonably believe they are citizens. There are no loopholes or exceptions for such good-faith judgments. Instead, the law requires – and the USCIS makes it very clear – that all U.S. employers must have an I-9 for every individual they hire for employment.

You must complete employment eligibility verification strictly within three business days of the individual’s date of hire. Failing to do so constitutes a violation of the law and could result in fines or other action in the event of a federal audit at a later date. You must record the date of hire and the date that the I-9 was completed on the form.

Are There Any Exceptions?

The law that created the I-9 process was not retroactive, meaning that employees who were part of a business before its passage could be “grandfathered” in. According to the USCIS, I-9 requirements apply to new employees hired within the USA after November 6, 1986. In the overwhelming majority of cases, this cutoff date is not relevant to companies today.

Very few businesses retain staff for nearly 40 years or more. In rare cases, you may have an employee exempt from the I-9 by virtue of a 1980s hiring date. However, as time passes, the likelihood of such individuals remaining at the same company without retiring diminishes. Nonetheless, an exception for such individuals exists provided they continue in their current employment and have a reasonable expectation of employment at all times.

Other exceptions include:

• Independent contractors
• Individuals providing work to you via a contractor
• Those who do not physically work within the United States
• Private workers in domestic homes with irregular employment

Self-employed individuals don’t need to fill out an I-9 for themselves, except when they are also an employee of another business. These are the only exceptions. Everyone else must have an I-9 on file.

Do All Employees Need To Be Run Through E-Verify?

E-Verify is a free system provided by the government to employers who choose to enroll in the program. The E-Verify system takes the information entered on an employee’s I-9, particularly their List A or B documents, and checks for matching information in government databases. While E-Verify does not claim to verify the originality or authenticity of the documents provided to you, it does offer an additional layer of verification.

An E-Verify case that confirms a match between provided documents and what the government knows offers additional peace of mind. In the event of an audit, E-Verify case information can act as a defense against willful wrongdoing; even if an applicant successfully forged documents, you can demonstrate that you conducted all the necessary steps in good faith. Is it mandatory for you to do so?

Not necessarily. Unlike the I-9 process, E-Verify remains largely voluntary—with some exceptions. The federal government does not require employers to use the system. However, some states have passed laws that do make it mandatory for private employers. States currently mandating E-Verify usage for private employers include:

• Alabama
• Arizona
• Florida (if more than 25 employees)
• Georgia (if more than 11 employees)
• Lousiana
• Mississippi
• North Carolina (if more than 25 employees)
• South Carolina
• Tennessee (if more than 35 employees)
• Utah (if more than 15 employees)
• Virginia (if more than 50 employees)

Other states restrict E-Verify mandates only to public employers. Employers in non-mandating states should continue monitoring for legislative changes, as some regions continue to explore whether to mandate E-Verify for their private employers. If you voluntarily enroll in E-Verify, you must use it for all employees without exception.

Creating a Smart, Compliant I-9 Process

To recap, every private business employee must have an I-9 on file for as long as the record retention requirements mandate. This period includes the employee’s time actively working with the company and some time afterward. Failing to do so can expose a business to regulatory action, fines, and other punitive actions.

At backgroundchecks.com, we have various resources to illuminate and explain the I-9 process from start to finish. We also provide access to a service supporting the digitization and streamlining of your employee Form I-9 process, including the potential for integrated E-Verify support. Discover how simple and easy it is to create an employment authorization workflow that aligns with the law and lets you capably meet your compliance requirements today.