Right to Work Check: US Employer Compliance Guide (I-9 & E-Verify)

Every US employer is legally required to verify that each employee is authorized to work in the United States before or at the start of employment. Failing to complete Form I-9 correctly — or failing to retain records — can result in civil penalties of up to $2,789 per paperwork violation and up to $27,894 per worker for knowingly hiring unauthorized individuals. This guide covers the current legal framework, the I-9 process, E-Verify enrollment, acceptable documents, record-keeping rules, and answers to the questions US employers ask most frequently.

Important clarification for US searchers: In the United States, the phrase "right to work" carries two entirely different legal meanings. This article covers employment eligibility verification — the I-9 process that confirms every new hire is legally authorized to work in the US under the Immigration Reform and Control Act (IRCA). A separate body of state law, also called "right to work," prohibits requiring union membership as a condition of employment. Those state statutes — currently in effect in 27 states including Texas, Florida, and Georgia — are not covered here. If you are researching union membership rules, that is a distinct subject under the National Labor Relations Act.

This article is for HR professionals, compliance officers, and business owners responsible for pre-employment screening. It is informational only and does not constitute legal or immigration advice.

What Is Employment Eligibility Verification and Why Is It Legally Required?

Employment eligibility verification is the process by which an employer confirms that a new hire is authorized to work in the United States. The obligation applies to every employer in the country, regardless of size, industry, or whether the employee is a US citizen or a foreign national.

The legal basis is the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a, which makes it unlawful for any employer to hire an individual who is not authorized to work in the United States. The primary compliance instrument is Form I-9 (Employment Eligibility Verification), administered by U.S. Citizenship and Immigration Services (USCIS). As of February 2026, the current edition of Form I-9 is dated 01/20/25, with an expiration date of 05/31/2027 (USCIS I-9 Central).

A completed I-9 also provides the employer with a legal defense — a documented record of compliance — if the employer is later audited by Immigration and Customs Enforcement (ICE). That defense only holds if the I-9 was completed correctly and retained for the required period.

Checks must be applied consistently to every new employee, regardless of national origin, citizenship status, or appearance. Requesting specific documents from workers of certain backgrounds — while accepting different documents from others — constitutes unlawful discrimination under the Immigration and Nationality Act's anti-discrimination provisions (8 U.S.C. § 1324b), enforced by the Department of Justice (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices.

The I-9 Process: Step by Step

Section 1 — Employee Completes on the First Day (or Before)

The employee must complete Section 1 of Form I-9 on the first day of employment or any time after a job offer has been accepted but before the start date. Section 1 collects the employee's full legal name, date of birth, address, Social Security Number (if applicable), attestation of citizenship or immigration status, and — where applicable — the expiration date of work authorization.

The employer may not complete Section 1 on the employee's behalf, but must ensure the form is available and may assist employees who need help completing it.

Section 2 — Employer Completes Within 3 Business Days

The employer must complete Section 2 within 3 business days of the employee's first day of work for pay. For employees hired for fewer than 3 days, Section 2 must be completed by the first day of employment.

To complete Section 2, the employer must:

1. Physically examine original documents presented by the employee (not photocopies).
2. Determine that the documents appear to be genuine and relate to the person presenting them.
3. Record the document title, issuing authority, document number, and expiration date.
4. Sign and date the certification.

Critical rule: The employer cannot specify which documents to request. The employee chooses which acceptable document(s) to present from the Lists of Acceptable Documents. Demanding a passport, for example, when an employee is willing to present a driver's license and a Social Security card, is a violation of the anti-discrimination provisions.

Remote I-9 Verification — E-Verify Participants Only

Since August 2023, USCIS has provided an alternative procedure for remote document examination. This option is available exclusively to employers enrolled in E-Verify and in good standing. Under the alternative procedure, the employer may:

1. Examine copies of the documents (front and back) submitted by the employee via video, fax, email, or another electronic means.
2. Conduct a live video interaction with the employee to confirm the documents appear genuine.
3. Retain copies of all documents and note "Alternative Procedure" in the Additional Information field of Section 2.

Employers who are not enrolled in E-Verify must still conduct in-person physical document examination for all new hires (USCIS Alternative Procedure FAQ).

Acceptable Documents: List A, List B, and List C

Form I-9 recognizes three categories of acceptable documents. Employees present either one List A document, or one List B document combined with one List C document.

Employers must accept any document combination from the Lists that on its face appears genuine. Rejecting documents that appear authentic — or requiring additional documentation beyond what the employee has chosen to present — is an unfair immigration-related employment practice under 8 U.S.C. § 1324b (DOJ Employer Guidance on Document Abuse).

E-Verify: How It Works and When It Is Mandatory

What E-Verify Is

E-Verify is a free, web-based system operated jointly by USCIS and the Social Security Administration (SSA) and Department of Homeland Security (DHS). It compares information from an employee's Form I-9 against government records to confirm employment authorization. E-Verify does not replace Form I-9 — it supplements it.

E-Verify is mandatory for:

• Federal contractors and subcontractors with contracts containing the Federal Acquisition Regulation (FAR) E-Verify clause, pursuant to Executive Order 13465 and 48 C.F.R. Part 22
• Employers in states that mandate E-Verify use, including Arizona (A.R.S. § 23-214), Mississippi (Miss. Code Ann. § 71-11-3), North Carolina (N.C. Gen. Stat. § 64-26), and others — state mandates vary by employer size and sector

E-Verify is voluntary but strongly encouraged for all other US employers. Enrollment is available at e-verify.gov.

E-Verify Process

1. Employer creates an E-Verify case within 3 business days of the employee's first day of work.
2. Employer enters the employee's Form I-9 information into the system.
3. The system returns one of three initial results:
   • Employment Authorized: no further action required.
   • Tentative Nonconfirmation (TNC): the system could not confirm authorization; employer must notify the employee, who may contest the result within 10 federal government business days.
   • Case in Continuance: SSA or DHS needs additional time; employer must wait for final resolution.
4. If the employee does not contest or does not resolve a TNC within the timeframe, the case becomes a Final Nonconfirmation (FNC): the employer should not continue employment.

Employers may not terminate or take adverse action against an employee solely because of a Tentative Nonconfirmation. Doing so is a violation of E-Verify program rules and may constitute unlawful employment discrimination (E-Verify Memorandum of Understanding, Article II, Section C).

Updating to the New I-9 Form

Employers using electronic I-9 systems must update those systems to accommodate the 01/20/25 edition of Form I-9 by July 31, 2026. After that date, use of a prior edition for new hires will constitute a paperwork violation (USCIS I-9 Central Updates).

Record-Keeping and Retention Requirements

Retaining I-9 records is a separate and independent obligation from completing them. Both are required.

I-9 records must be retained for the later of:

• 3 years from the date of hire, or
• 1 year after the date employment is terminated

This formula means that an employee who works for 10 years must have their I-9 retained for 11 years from their hire date (1 year after termination, which is longer than 3 years from hire).

Records must be made available to authorized government officers from USCIS, ICE, or the DOJ Office of Special Counsel within 3 business days of a request. An employer who cannot produce I-9 records for a current or former employee will not have a compliance defense available and is subject to a paperwork penalty for each missing or deficient form.

I-9 forms may be stored on paper, microfiche, or in an electronic system. If stored electronically, the system must produce a legible, clear, and complete copy of the form upon request and must include an audit trail of actions taken on each record.

Re-Verification of Expiring Work Authorization

Re-verification is required when an employee's work authorization expires, as shown in Section 1 or Section 2 of the I-9.

Re-verification is NOT required for:

• US citizens
• Lawful Permanent Residents (LPRs / "green card" holders), even if the card itself expires — LPR status is permanent and the card is only an evidence document
• List B documents (re-verification applies only to employment authorization)

Re-verification IS required for:

• Employees with a temporary Employment Authorization Document (EAD) — Form I-766
• Employees with a non-immigrant visa-based work authorization that has an expiration date
• Employees who presented a List A document with a specific expiration date

To re-verify, the employer completes Section B of Supplement B on the current Form I-9 (or a new I-9 for certain situations). The employer must do this on or before the date the employee's work authorization expires — not after. An employee who cannot present a new valid work authorization document before expiration may not continue to be employed.

The employer should not set automatic calendar reminders for re-verification based on a green card expiration date. USCIS has stated that requesting re-verification from an LPR solely because their card has expired constitutes document abuse (USCIS Handbook for Employers M-274, Section 7.4).

Penalties for Non-Compliance

ICE conducts Form I-9 audits — called "inspections" — by serving a Notice of Inspection (NOI) on the employer. Upon receiving a NOI, the employer has 3 business days to produce all I-9 records. Penalties fall into two categories.

Paperwork Violations

Paperwork violations include failing to properly complete, retain, or make available Form I-9. As of 2025, paperwork penalties range from $281 to $2,789 per form (adjusted annually for inflation under the Federal Civil Penalties Inflation Adjustment Act).

Substantive Violations

ICE increased worksite enforcement audit activity significantly in 2025, with the number of I-9 audits surpassing 6,000 for the first time since 2019 (ICE Worksite Enforcement Statistics). Employers in construction, hospitality, agriculture, and staffing industries face disproportionately higher audit risk.

For a broader view of employer document verification obligations across multiple compliance domains, see our document compliance guide.

Anti-Discrimination Requirements

The I-9 process must be applied uniformly across all new hires, regardless of national origin, citizenship status, or immigration status. The anti-discrimination provisions of the INA (8 U.S.C. § 1324b) prohibit:

• Citizenship or immigration status discrimination: treating employees differently in hiring, firing, or document requirements because of their citizenship or immigration status
• National origin discrimination: treating employees differently because of their country of birth or ancestry
• Document abuse: requesting more or different documents than required, or rejecting documents that reasonably appear genuine
• Retaliation: taking adverse action against an employee who has asserted their rights under the anti-discrimination provisions

The practical compliance safeguard is a written I-9 policy that specifies:

• That I-9 verification is required for every new hire, without exception
• Which designated HR staff member completes Section 2
• That employees are presented with the complete Lists of Acceptable Documents and allowed to choose what to present
• How records are stored, indexed, and purged after the retention period expires

E-Verify must also be used consistently. An employer enrolled in E-Verify cannot selectively run E-Verify cases only for workers of certain nationalities or backgrounds. Every new hire must be entered into E-Verify if the employer participates, per the E-Verify Memorandum of Understanding.

Integrating I-9 Compliance Into a Broader Compliance Framework

Employment eligibility verification is one component of a broader pre-employment and onboarding compliance process. Employers in regulated industries — financial services, healthcare, government contracting, and others — are simultaneously subject to background check requirements, sanctions screening, and Know Your Customer obligations for business relationships.

CheckFile supports compliance and HR teams in automating document verification across identity and employment authorization workflows, reducing manual review time and producing timestamped audit trails suitable for government inspection. The platform supports US government-issued identity documents — state driver's licenses, US passports, Permanent Resident Cards, and Employment Authorization Documents — and integrates with existing HRIS and onboarding systems via API. See our security infrastructure for details of the data handling standards applied to document processing, or review pricing options for teams of different sizes.

For organizations with parallel KYC obligations in financial services, our KYC 2026 requirements guide covers the current regulatory landscape for identity verification. Employers conducting enhanced screening of contractors and business partners may also find our due diligence checklist for businesses a useful reference.

Frequently Asked Questions

What is the difference between a "right to work check" and "right to work laws" in the United States?

These are two legally unrelated concepts that share a phrase. A right to work check — more precisely called employment eligibility verification — is the I-9 process required by IRCA (8 U.S.C. § 1324a) that confirms every new hire is authorized to work in the United States. Right to work laws are state statutes that prohibit requiring union membership as a condition of employment; 27 states have enacted such laws. If you are an employer running a pre-employment compliance program, the I-9 process is what you need. Union-related right to work laws are a separate labor relations question.

Do I need to complete Form I-9 for US citizens?

Yes. Form I-9 is required for every new employee — US citizens and non-citizens alike. Citizens may present any acceptable document from the Lists, most commonly a US passport (List A) or a combination of a driver's license (List B) and a Social Security card (List C). The requirement is not about immigration status; it is a universal employer obligation under IRCA.

When is E-Verify mandatory for my business?

E-Verify is mandatory for: (1) federal contractors and subcontractors with a FAR E-Verify clause in their contract; and (2) employers in states with mandatory E-Verify laws (including Arizona, Mississippi, North Carolina, South Carolina, Alabama, and others — requirements vary by state and employer size). All other employers may use E-Verify voluntarily by enrolling at e-verify.gov. Employers who use E-Verify are also the only employers eligible for the remote I-9 alternative procedure.

How long do I have to keep completed I-9 forms?

I-9 forms must be retained for the later of 3 years from the hire date or 1 year after the date the employee's employment ends. For a practical example: an employee hired on March 1, 2020 and terminated on June 1, 2025 requires I-9 retention until June 1, 2026 (one year after termination, which is longer than 3 years from the March 2020 hire date). Forms must be produced within 3 business days of an ICE Notice of Inspection.

What should I do if a new employee cannot immediately provide I-9 documents?

If a new employee cannot present acceptable documents by the end of the third business day after their first day of work, the employer may not continue employing that individual without risk of a penalty. If a document is lost or a replacement is being issued (such as a replacement Social Security card), the employee may present a receipt for the replacement document. The receipt is valid for 90 days, after which the actual document must be presented. There is no equivalent to the UK's Employer Checking Service in the US; the employer must ensure documents are presented within the prescribed timeframe.

Do I need to re-verify employment authorization for a permanent resident whose green card is expiring?

No. Lawful Permanent Resident status is permanent — the green card (Form I-551) is merely evidence of that status. When an LPR's card expires, the employer may not require the employee to re-verify or present a new card. Requesting re-verification solely because a green card has expired is considered document abuse under 8 U.S.C. § 1324b. Re-verification is only required when an employee's work authorization itself expires — for example, when an employment authorization document (EAD) expires for a worker on a temporary visa status.

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This article is informational only and does not constitute legal or immigration advice. I-9 regulations, E-Verify program rules, and penalty amounts are subject to change; employers should verify current requirements at uscis.gov/i-9-central and e-verify.gov, and seek qualified immigration counsel where necessary. CheckFile supports employers with automated document verification workflows — visit our pricing page to explore options for your team.