I-9 verification is the process of US employers verifying that new hires have legal status to work in the United States.  The I-9 form requires employers to review all new hires’ documents and attest to their legal authorization to work under penalty of perjury.  Proof of US work authorization is demonstrated through documents such as a US passport or US birth certificate.

An “employee” is considered to be anyone who provides services or labor for an employer in exchange for wages or other compensation.  However, a question often asked is whether independent contractors fall under this category.

An independent contractor includes “individual entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results.”  Signs of independence include: (1) who supplies tools/materials; (2) whether services are available to the public; (3) whether work is done for other clients; (4) whether there is an opportunity for profit or loss as a result of the labor; (5) whether there is an investment in the facilities for work; and (6) who determines order, sequence, and time work is done.  8 C.F.R. §274a1(j).

The government has concluded that independent contractors do not fall under the category of employee.  As a result, employers are not required to complete an I-9 verification form for independent contractors.

However, in certain situations employers may still face liability for the immigration status of independent contractors even without being required to complete form I-9.  If an employer has knowledge the independent contractor is working illegally or hiring illegal aliens, then the employer is obligated not to use the independent contractor’s services.  If an employer knowingly contracts or does business with undocumented independent contractors they may face penalties from the government.

For more information regarding I-9 compliance and immigration matters, contact General Counsel, PC at 703.556.0411.