You determine documented worker status in seven steps: 1) Sign and date Section 1 on hire day; 2) Complete Section 2 within three business days; 3) Provide one List A document or an List B plus List C; 4) Verify security features, expiration, and photo; 5) For U‑ or T‑visa hires, attach the I‑797 as List A; 6) Pair a foreign passport with an I‑94; 7) Retain I‑9 records for three years or one year after termination, whichever is later. Details

Key Takeaways

• Prioritize a single List A document (passport, Permanent Resident Card, or EAD) to establish both identity and employment eligibility.
• When List A is unavailable, combine one unexpired List B document with one unexpired List C document, ensuring the List B item includes a photograph.
• Verify U‑visa, T‑visa, or other specialty visas with the original Form I‑797 approval, confirming case number, filing date, and USCIS seal.
• For foreign nationals, pair a valid foreign passport with a current Form I‑94; retain the paper I‑94 and an electronic copy for records.
• Maintain all I‑9 documentation for three years from hire or one year after termination, whichever is later, stored securely to satisfy audit and NLRB requirements

Apply I‑9 Rules to Determine Documented Worker Status

When you apply the I‑9 rules to determine a worker’s documented status, you begin by reviewing the employee’s completed Section 1, which must be signed and dated on the first day of employment. Verify the name, address, date of birth, Social Security number, and, for non‑citizens, the alien registration or I‑94 number. Next, you complete Section 2 within three business days, examining original documents for genuine appearance and proper relation to the employee. Record the document title, number, issuing authority, and expiration date, and sign under penalty of perjury. Use a List A document alone or combine List B and List C as required. Follow the Training Guidelines that stress original, unexpired documents and prohibit the use of copies, except for a 90‑day receipt for a new Social Security card. Maintain records for Audit Preparation, confirming all entries are legible, dated, and securely stored for the mandated retention period, and audit readiness confirmed. The required Retention period is three years from the hiring date or one year after termination, whichever is

Select the Most Reliable Acceptable‑Document Evidence

Because you must stay compliant with I‑9 regulations, you should select the most reliable acceptable‑document evidence by first looking to List A items—such as a U.S. passport, permanent‑resident card, or an employment‑authorization document with a photograph—or, when a List A document isn’t presented, by pairing a List B identity document with a List C work‑authorization document that are both unexpired, genuine, and include a photograph.

Confirm Document Authenticity by checking thorough security features, expiration dates and signatures. Verify Photographic Verification—either in List A or on the List B identity document. Acceptable List A items include a U.S. passport, Permanent Resident Card or Employment Authorization Document. For List B + C, pair a driver’s license with an SSN or a clear birth certificate. All documents must be current, because unexpired documents are a core requirement.

Verify Adjustment‑Application Proof (I‑797, EAD, I‑512)

The I‑797 receipt notice serves as official proof that your I‑485 adjustment‑of‑status application is pending, and it should be retained alongside the I‑797C appointment notice confirming USCIS acceptance. Verify receipt authenticity by checking the case number, filing date, and USCIS seal; store both documents in a secure file. Present the I‑766 Employment Authorization Document (EAD) as evidence of work eligibility; it must display the “C9” or “C9P” code and, if it is a combo card, the statement “Serves as I‑512 Advance Parole.” When you travel, confirm parole validity by presenting the approved Form I‑512 and confirming its expiration date does not exceed one year. Keep the I‑765 receipt notice to demonstrate pending authorization if the EAD is unavailable. Align all notices with List C #7 requirements for Form I‑9 compliance during processing delays. Regularly review each document’s expiration dates, renew promptly, and retain official copies for any future immigration audits. USCIS guidance confirms that Form I‑797 can be used for I‑9 verification during EAD

Incorporate U‑Visa and T‑Visa Proof Into the I‑9 Decision

Although many employers concentrate on the most common work‑authorization categories, U‑visa and T‑visa holders also furnish valid List A documents for Form I‑9 verification. You must accept the original Form I‑797 approval notice issued for a U‑visa (Form I‑918) or a T‑visa (Form I‑914) as both identity and employment‑authorization evidence. During Section 2, your screening protocols require you to examine the notice in person or via approved remote verification tools, confirming that the document is unexpired and appears genuine. Note the expiration dates; the authorization remains valid only for the period shown on the I‑797. After review, complete Section 2 entries, recording the document title, number, and expiration. Confirm the employee signs Section 1, attesting to eligibility based on the visa classification. Treat U‑ and T‑visa workers without discrimination, applying the same verification standards as other authorized categories. Maintain accurate records for seven years, and periodically audit your process to confirm ongoing compliance with national federal. Employers must complete Section 2 within three business days of the employee’s first day of work.

Use Passport and I‑94 When They Are the Primary Evidence

When you receive a foreign passport together with a valid Form I‑94, the pair satisfies List A requirements for both identity and employment authorization. You must perform Passport Validation by confirming the name matches the I‑94 and checking that the document is unexpired. During the I‑94 Review, retrieve the electronic record from the CBP portal, print it, and retain the printout with the original passport.

If you hold a paper I‑94 card, keep the original on your person at all times; a printed electronic copy suffices when the card is absent. When your I‑94 expiration approaches, file the appropriate I‑129 petition promptly; the I‑797 receipt then extends your work authorization under the 240‑day rule. Maintain both passport and I‑94 copies in the employee file to satisfy I‑9 retention requirements throughout your. For any questions, you may also reach our Office Phone at 612‑305‑7500 for

Apply NLRB Protections While Completing the I‑9

Because employers must obey both the IRCA and the NLRA, you’ll need to embed NLRB protections into every stage of I‑9 completion. The NLRB’s Frontier Comm. Corp. decision, where 95 % workforce needed new I‑9s, underscores that such compliance is a mandatory bargaining subject. Treat the I‑9 directive as a mandatory subject of collective bargaining; involve the union when setting timeframes, document‑type choices, and E‑Verify enrollment. Guarantee employee participation by allowing workers to voice concerns without retaliation and by documenting any concerted activity related to verification delays. Do not interfere with Section 7 rights during the three‑day completion window; any pressure to expedite or conceal deficiencies may trigger an unfair‑labor‑practice claim. Record all interactions with the union and retain evidence of compliance to defend against NLRB charges.

Integrate NLRB safeguards into every I‑9 step, ensuring collective bargaining input and protecting Section 7 rights

• Offer the same completion period to all hires.
• Allow union representatives to observe the verification process.
• Provide notice of document requirements before the deadline.
• Document any employee‑initiated requests for additional time.
• Report any disciplinary actions related to I‑9 compliance to HR

Prevent Discriminatory I

If you follow the INA’s document‑choice rules, you’ll avoid the pitfalls of over‑documentation and discrimination claims. Presenting a green card together with a Social Security card creates over‑documentation under I‑9 rules. By allowing employees to select any acceptable I‑9 documents, you eliminate the risk of requesting extra proof or specifying a driver’s license and Social Security card, actions that constitute document abuse under INA §1324b. Implement regular bias training and a thorough policy review to confirm your hiring team understands that asking for specific citizenship or national‑origin evidence is prohibited. Document each hiring, promotion, or termination decision with neutral reasons to guard against disparate‑treatment allegations.

Enforce these steps consistently. Maintain documentation that treats every worker equally, regardless of status

Frequently Asked Questions

How Long Can an Employee Use a Temporary EAD After I-485 Denial?

You can keep working until the card’s expiration date, because the I‑485 denial doesn’t automatically end your authorization. The Expiration Countdown on the EAD determines how many days you remain eligible. If the card is still valid, you may still have Renewal Eligibility for a new EAD, provided you meet the category requirements and file before the current card expires. Any employer who follows this rule stays compliant with regulations.

Are Self-Employed Workers Required to Complete an I‑9?

You verify identity, you verify work authorization, you verify tax status – all without an I‑9. No, self‑employed workers aren’t required to complete Form I‑9; they must instead furnish independent verification of their eligibility and satisfy documentation obligations via Form W‑9. Confirm you retain proof of work authorization, keep the W‑9 on file, and monitor any change that could convert the relationship into employment subject to I‑9 rules, federal regulations.

Can an Employer Request a Social Media Profile to Verify Immigration Status?

No, you cannot request an employee’s social‑media profile to verify immigration status. The I‑9 regulations accept only specific List A, B, or C documents; social-media isn’t listed. Asking for such data raises privacy concerns and may expose you to discrimination claims. For risk mitigation, rely solely on lawful documents, retain them per I‑9 rules, and treat all workers uniformly without targeting citizenship or national origin, and maintain consistent compliance practices today

What Is the Employer’s Obligation if an Employee’s I‑94 Expires While on Leave?

You must terminate the employee’s work authorization the moment the I‑94 expires, even if the employee is on approved leave. Conduct a Documentation Check before any rehire and update your Leave Policy to reflect that expired I‑94 ends employment. Don’t reverify during the leave; instead, treat the expiration as a termination and rehire only after a valid, new I‑94 is issued promptly and guarantee compliance with federal regulations and penalties.

Do DACA Recipients Need an I‑9 for Remote

Yes, you’ve got to complete an I‑9 for any DACA recipient, even when hired remotely. Under Remote Verification, you or an authorized representative need to examine the employee’s unexpired EAD (C33) in the employee’s presence within three business days. Record document title, number, and expiration in Section 2, satisfying DACA Formalities. Keep I‑9 on file, and reverify in Section 3 when the EAD expires. Guarantee compliance with federal record‑keeping rules and audits

Conclusion

You’re now equipped to align every I‑9 element—forms, visas, passports—with the exact proof needed, just as the timing of each document often coincides with the next legal requirement. By selecting the most reliable evidence first, verifying adjustment applications, and integrating U‑Visa or T‑Visa data, you’ll avoid discrimination pitfalls and satisfy NLRB safeguards. Follow this structured approach, and the consistency of your decisions will mirror the precision law demands in each future audit scenario today.

James Bateson

Lawyer