Do I Need to Use Form I-9?
All employers (and agricultural recruiters and referrers for a fee) must fill out and keep Form I-9 for every person they hire for employment in the United States as long as the person works for pay or other benefits. [NOTE: We will refer to both employers and agricultural recruiters and referrers for a fee collectively as “employers” for ease of reference throughout the I-9 Central Web pages.]
Employers must complete Form I-9 for every employee hired after Nov. 6, 1986, even if the employee is a U.S. citizen. In the Commonwealth of the Northern Mariana Islands (CNMI), employers had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009 to Nov. 27, 2011 and the standard Form I-9 for those hired on or after Nov. 28, 2011.
Employees that fall within certain categories may lead employers to seek additional guidance for complete Form I-9. In general, these employees include:
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Employees in the Commonwealth of the Northern Mariana Islands: Individuals hired for employment in the Commonwealth of the Northern Mariana Islands.
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Employees from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau: Individuals hired for employment who are from the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
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Domestic workers: Individuals who perform child care, household tasks, and/or upkeep of a home or surrounding yard on a regular basis in return for wages or other benefits, and who are not providing services on a sporadic basis or for independent contractors or separate businesses.
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Minors: An individual under the age of 18
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Employees with disabilities: Individuals with physical or mental impairments that significantly limits one or more major life activities and are placed in a job by a nonprofit organization or association, or as part of a rehabilitation program.
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Temporary Protected Status beneficiaries: The federal government may give TPS to individuals from specific foreign countries beset by extraordinary and temporary conditions such as natural disasters and civil wars.
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Asylees and Refugees: Non-U.S. citizens who typically have left their own country and are unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
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Foreign Students: Individuals coming temporarily to the United States to pursue a full course of study in an approved program in either an academic or vocational institution, or a recognized nonacademic institution. (Academic institutions include colleges, universities, seminary, conservatories, academic high schools, elementary schools, other institutions, and language training programs.)
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Exchange Visitors: Individuals coming temporarily to the United States as participants in exchange programs administered by the U.S. Department of State.
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E-Visas holders: Treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country they are a citizen or national of. This category also includes Australian specialty occupation workers.
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NAFTA (TN) Visas holders: The North American Free Trade Agreement (NAFTA) creates special economic and trade relationships for the United States, Canada and Mexico. The TN nonimmigrant status allows professionals from Canada and Mexico to work in the United States.
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Temporary Nonimmigrant Workers: Individuals coming to the United States lawfully as nonimmigrants to work temporarily in the United States.
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Mergers and Acquisitions: Persons acquiring another company or merging with another company.
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Employees resuming their job after a temporary break in employment: Individuals may be considered to be continuing in employment (with no new Form I-9 required) if, for example, they take approved paid or unpaid leave or are laid off.
In some cases, employers do not need to fill out or keep a Form I-9.
Exceptions to Form I-9
Employers must complete and keep a Form I-9 for every employee hired for employment in the United States, except for:
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Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times. Some limitations to this exception apply.) Also excepted are individuals hired for employment in the Commonwealth of the Northern Mariana Islands (CNMI) on or before Nov. 27, 2009.
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Individuals employed for casual domestic work in a private home on a sporadic, irregular or intermittent basis.
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Independent contractors or individuals providing labor to you who are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).
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Individuals not physically working in the United States
Hired On or Before Nov. 6, 1986
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Congress passed the Immigration Reform and Control Act (IRCA) on Nov. 6, 1986. This law requires employers to verify the identity and employment authorization of each employee they hire for employment in the United States. If an employer hired an employee on or before Nov. 6, 1986, and still employs that person, the employer is generally not required to complete Form I-9 for that employee. For employers in the Commonwealth of the Northern Mariana Islands (CNMI), Form I-9 is not required for employees hired for employment in the CNMI on or before Nov. 27, 2009.
If a company merges with another company, employers may need to complete Form I-9 for an employee of the newly acquired firm who was originally hired on or before Nov. 6,1986.
Casual Domestic Services
“Casual domestic services” refers to individuals (such as a handyman, babysitter or cleaning person) paid by you to help in or around your private home, provided the services are:
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Sporadic, meaning they occur occasionally, singly or in irregular or random instances;
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Irregular, meaning the occurrence or activity lacks continuity or regularity; or
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Intermittent, meaning that it does not occur continuously but instead comes and goes at intervals.
No Form I-9 is required for casual domestic services. Remember, however, that you may not employ a person knowing that he or she is not authorized to work in the United States.
Independent Contractors
An independent contractor is not considered an employee for Form I-9 purposes.
Many factors are considered when determining whether or not an individual or entity is an independent contractor. Independent contractors are individuals or entities that may:
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Contract to do a job according to their own means and methods.
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Supply their own tools or materials.
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Offer their services to the general public.
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Work for a number of clients at the same time.
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Have an opportunity for profit or loss as a result of labor or services provided.
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Invest in facilities to do all or part of the work.
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Direct the order in which the work is to be done.
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Determine the hours during which the work is to be done.
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Are subject to control only as to results.
The individual or business contracting the independent contractor is not required to complete Form I-9 for the contractor. Remember, however, that federal law prohibits individuals or businesses from contracting with an independent contractor knowing that the independent contractor is not authorized to work in the United States.
Temporary or Staffing Agencies
Who completes Form I-9 depends on whether the workers are employees of the agency or of the business.
In most cases, if a business uses a temporary or staffing agency to obtain workers, those workers are employees of that agency and provide service to the business as independent contractors. The agency completes a Form I-9 for each worker they provide to a business, because the workers are considered independent contractors of the business.
An agency may complete Form I-9 before one of its workers accepts a particular assignment, even if:
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The worker has not yet been offered or accepted an actual assignment.
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There is the possibility that no actual work may arise from the arrangement.
Not physically working in the United States
Employers are not required to complete Form I-9 for employees who do not work in the United States.
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