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I-9 Before Hire Date?

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Can an employer require that the I-9 document with corresponding verification documents be completed prior to the start of actual employment? For example during the background check process?

It may seem easier to have employees fill out the I-9 during the pre-employment period, but employers who routinely require I-9 forms to be completed by applicants – rather than new employees – are setting themselves up for a discrimination suit.

According to the DHS I-9 Information Booklet, employers should not request I-9 verification documents or completed forms from job applicants. The employee should not be required to complete the form until he or she starts work. The booklet repeatedly refers to having the employee fill out the I-9 on the first day of work, rather than having applicants fill them out.

The Social Security Administration also urges workers to show their social security card only to employers, not potential employers.

Even after an employee has accepted a conditional offer of employment, and a background check is being conducted, the best practice in HR is to wait until the employee is officially hired to make copies of the verification documents.

Employees have 3 days after they are hired to supply the necessary I-9 documents. An employee who doesn’t supply the documents on the third day can legally be terminated. However, an employee who supplies the documents on the third day must be treated the same as one who supplied the documents on the day they were hired.

The INA or Immigration and Naturalization Act is the law that requires employers to complete I-9 forms. The law specifically forbids discrimination in hiring or employment decisions based on citizenship status, nationality or national origin. As long as the employee can legally work in the US, employers are not allowed to discriminate against workers simply because they are not citizens.

To make it more complex, an employer can legally decide that US citizenship is a qualification for a particular position…but not that it is a qualification for all positions in the company. The employer could decide that the CEO or security guard needed to be a citizen, but other employees like secretaries and HR managers did not. And, certain federal, state and local agencies, including the DHS, don’t have to follow this law.

An employer who regularly collects information on applicant’s citizenship status or nationality is going to have a hard time showing that the information is not used as the basis of employment decisions, including hiring decisions, or in a discriminatory way.

Of course, it should go without saying that an employer cannot request I-9s from applicants who are Hispanic, or who speak with an accent, and not other applicants. That is prima facie discrimination based on race, color or national origin.

The DHS permits employers who are using the federal E-Verify system to require workers to provide a Social Security number – but again, not a specific document with the number on it (such as a Social Security card.) E-Verify compares the information on file with the Social Security Administration and certain other agencies to detect document fraud. But again, this does not apply to applicants.

The DHS booklet specifically says, “Providing a social security number on the I-9 form is voluntary for all employees unless you are an employer participating in the USCIS E-Verify Program, which requires an employee’s Social Security number for employment eligibility verification. You may not, however, ask an employee to provide you a specific document with his or her Social Security number on it, to avoid unlawful discrimination.”

Many employers will have an employee complete the I-9 and other “new hire paperwork” including the employee handbook and a W-2, after accepting the position, but a few days before the employee’s first scheduled shift. When an employer does this, the worker’s “date of hire” is the day the I-9 was completed. This gives the employer several days to use E-Verify or another system to check the documents submitted. Employers should be aware, however, that this earlier “date of hire” must be used for all employment purposes, including calculating eligibility for benefits.  

Employers need not fear repercussions under federal law if they wait until the employee is hired to verify the I-9. In the Q&A section the DHS booklet asks, “What happens if I properly complete a Form I-9 and DHS discovers that my employee is not actually authorized to work?” The answer is: “You [the employer]  cannot be charged with a verification violation. You will also have a good faith defense Form M-274 (Rev. 11/01/2007) N Page 21 against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien, unless the government can show you had knowledge of the unauthorized status of the employee.” 

In other words, an employer who dutifully completes the I-9 form and inspects the documents on the employee’s first day of work is 100% in compliance with the law.