Human Resources

H.R. Questions: Are ALL employers required to complete the I-9 or does the “fewer than 4 employees” rule apply?

The I-9 must be completed by ALL employers. The misunderstood limit of fewer than 4 employees comes from this part of the law.


Immigration Reform and Control Act of 1986 (IRCA) (national origin and U.S. citizenship discrimination) – 8 U.S.C. § 1324b(a)(2)(A):
The prohibition on citizenship and national origin discrimination does not apply to “a person or other entity that employs three or fewer employees”. Thus, the discrimination provision in this law applies to any employer with four or more employees. There is no distinction between full- and part-time employees, and no distinction based upon how long the employees have worked for the company. The term “employee” is not specifically defined in this statute. With regard to the hiring of unauthorized workers in § 1324a, it is clear from subsection (a)(4) that the prohibition on hiring an “unauthorized alien” applies to “contracts for labor”, and thus the law prohibiting employment of unauthorized aliens applies to the hiring of independent contractors, similar to the way that the Civil Rights Act of 1866 applies to independent contractors as well as employees.
Completing an I-9 is not “discrimination”. It is the law.
 All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form.
The actual law does not provide an exception for smaller employers. It defines an employer as:  https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=e096f20c2c5ca4735b6da78cdabcb167&rgn=div8&view=text&node=8:
(g) The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor;



I hope this helps!


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Lisa Smith, SPHR, SHRM – SCP
Certified EEO Investigator (EEOC)
Lead Support and Content Chief – HelpDeskforHR.com
“You cannot be audit-proof, but you can Be Audit-Secure.”

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