Depending on the employer relationship, Form I-9 may not be your responsibility

Employers are generally not required to complete a Form I-9 for employees who are employed by a contractor providing contract services (such as employee leasing or temporary agencies) and providing labor or services to the employer. In these circumstances, the contractor, as the actual employer, is responsible for completing and maintaining the employee’s Form I-9.  

However, the Form I-9 obligation can shift depending on the true nature of the employment relationship, not just how the arrangement is labeled. If the employer exercises sufficient control over the employee’s work (e.g., pays the employee’s wages directly, sets the employee’s work hours, assigns the employee’s work, or provides the employee benefits), then the employer may be considered the employee’s employer for Form I-9 purposes. In this case, the employer should complete and maintain a Form I-9 for the employee. To mitigate risk, the employer should ensure the contractor is completing employees’ Forms I-9 and maintain documentation showing the contractor is the employee’s true employer and the contractor’s responsibility for employment verification.  

Kayla Snider is an associate at Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. She can be reached at ksnider@ skoler-abbott.com and 413-737-4753.