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Using the Form I-9 Beyond its Intended Purpose

There’s been many things said and written about the Form I-9, but a little known fact is that the Form I-9 serves a very specific purpose in which employers should strictly adhere.

According to the law, the Form I-9 “may not be used for purposes other than for enforcement of the [Immigration and Nationality Act and certain provisions of federal criminal law],” as indicated by the Office of Special Counsel in one of its technical assistance letters.  The regulations for USCIS also states:

(4) Limitation on use of Form I-9.  Any information contained in or appended to the Form I-9, including copies of documents listed in paragraph (c) of this section used to verify an individual’s identity or employment eligibility, may be used only for enforcement of the [Immigration and Nationality Act and certain provisions of federal criminal law.]

The law seems pretty clear on its face, but is it?  In everyday practice, employers still have questions, and rightly so.  The regulations and laws can’t account for every scenario that employers encounter.  In the past, this is where the Justice Departments’ Civil Rights Division’s Office of Special Counsel (OSC) stepped in to provide guidance to employers.  (It’s also the same agency that investigates employers for immigration-related discrimination matters.)


In May, OSC was presented with the following scenario and asked to provide guidance: An employer, who is enrolled in E-Verify, wished to share its Form I-9 records with its payroll provider so that the payroll provider may confirm worker identities and issue paychecks to the workers.  The employer would also retain the Forms I-9 for five years after an employee left the company in order to allow the payroll provider an opportunity to inspect the documents.

In August, OSC was presented with another, similar inquiry about sharing its worker’s documents.  It inquired “whether the general contractor’s practice of requiring a [subcontractor]’s workers to produce their original documents evidencing authorization to work (that were previously presented and attested to by [the subcontractor] is permitted?”

Although OSC always includes a disclaimer in its technical assistances letters that it “cannot provide an advisory opinion on any set of facts involving a particular individual or entity,” its guidance is still very compelling and instructional.  These inquiries address two major points: 1) privacy and 2) liability.


Employers who enroll in E-Verify must sign a memorandum of understanding that it will abide by the rules for using E-Verify. The use if E-Verify and sharing of E-Verify documents is also governed by the Privacy Act and Social Security Act, which may result in criminal penalties when violated.

Notwithstanding whether an employer is enrolled in E-Verify, the OSC is careful to remind employers that Form I-9s contain highly sensitive personally identifiable information (PII), to which “federal, state, or local laws, regulations or executive orders” mandate careful protection.  You can read about our past articles on protecting PII data here and here.

OSC’s guidance essentially instructs employers to avoid sharing Forms I-9 and the data with outside vendors, since this likely constitutes a use beyond that which is authorized by law and regulation.

For employers who utilize an electronic I-9 software, the issue of privacy is even more critical.  Particularly where all-in-one software vendors are concerned (vendors that offer bundled packages like HRMS/HRIS, benefits, payroll, administration and ATS), employers should be especially vigilant about the vendor’s ability to assist the employer in isolating and segregating Form I-9 data, in order to comply with immigration laws (and OSC’s guidance).  In fact, it’s not uncommon for all-in-one vendor software to push data into the Form I-9 functionality and to pull data from Form I-9 functionality for other HR business processes – all in potential violation of Form I-9 rules and regulations. Here’s a great past article on vetting software vendors by one of our guest attorneys, which still rings true today.

Granted, the privacy “police” have yet to make its way into the lives of employers, the penalties for breach of privacy is real.  [The publicity surrounding these types of breaches can also be disastrous for companies.]


Probably of greater concern for both employers who inquired with the OSC was the risk of liability for immigration-related discrimination.

For the first employer inquiring about sharing its Forms I-9 with its payroll vendor, the OSC suggested that “to the extent the employer requests additional or different documents from an employee based on the vendor’s scrutiny of Forms I-9, the request could be perceived by the employee to constitute document abuse.”

For the second employer inquiring about the requirements a general contractor had for its subcontractors, the OSC indicated this:

If a general contractor were to ask an employee of a subcontractor to produce such documents a second time, this could present a number of problems.  Given the passage of time that likely would have transpired from when an employee was initially hired by a subcontractor… to when the general contractor is requesting to see the employee’s I-9 documentation, the employee may no longer have the documents presented for a number of reasons….

The OSC indicated the following potential reasons why employees might have different documentation or no longer possess the original documents presented during the initial Form I-9 inspection process:

  • Expired documents that have been replaced by newer documents
  • New documents as a result of an adjustment of status (such as from a lawful permanent resident to a U.S. citizen) have replaced the original document that was forfeited back to the government
  • Lost or stolen documents that have been replaced

To the extent such individuals are barred from employment, they may perceive that the general contractor and/or subcontractor has discriminated against them based on their citizenship or immigration status.  Because the proposed practice relates to the original I-9 verification process, such employees might also allege discriminatory I-9 practices in violation of the anti-discrimination provision.

In both scenarios, the employers were wise to seek assistance from experienced legal counsel to obtain an advisory from the OSC.  The importance of partnering with experienced attorneys who can spot liability issues before an employer proceeds down a potentially non-compliant path is crucial.  With or without counsel though, employers must remain vigilant about how their business processes with other vendors can significantly impact their compliance with immigration laws.

Human Resources Today