1. Use the Right Version of the Form
The current version of Form I-9 has an expiration date of 08/31/2019 in the upper right corner and a revision date of (07/17/2017 N) on the lower left hand corner of the form. The form can be found at http://www.uscis.gov/sites/default/files/files/form/i-9.pdf. This is the only version of the form that can be used – all previous editions are no longer accepted.
2. Timing is Everything…
The employee must complete Section 1 of Form I-9 before or on the first day of employment. Employees may complete Form I-9 early as long as the job has been offered and accepted. The employer must complete Section 2 of Form I-9 within three business days of the first day of work for pay. If an employee begins work on Monday, the employer has until Thursday to complete Section 2. This is known as the “Thursday rule.”
3. Only Accept Documents from the List of Acceptable Documents
In order to verify an employee’s employment authorization and complete Section 2, employers can only accept documents from the List of Acceptable Documents on Page 4 of Form I-9. It is up to the employee to provide the documents s/he has chosen from the List. The employer must either accept a document (or combination of documents) from List A, or one document each from List B and C. The employer cannot specify which documents it requires to complete Section 2.
4. Avoid Discrimination – don’t Over-document!
Employers can only accept the specified combination of documents from the List of Acceptable Documents, which is one document from List A; or one each from List B and C. Once the employee presents the appropriate documents from the List of Acceptable Documents, the employer must complete Section 2 of the I-9 form with the relevant information (document title, issuing authority, document number and expiration date) in the designated columns (List A, or one each from List B and C).
5. Only Accept Original Documents
To complete Section 2 of Form I-9, an employer must examine the original document.
6. Know the “receipt rule”
The “receipt rule” covers situations in which an employee is authorized to work at the time of initial hire or re-verification, but s/he does not have an appropriate document listed on the List of Acceptable Documents. In lieu of the appropriate document from the List of Acceptable Documents, an employer may accept a receipt.
There are three different situations covered by the receipt rule.
- Receipt for a replacement document when the document has been lost, stolen, or damaged. The receipt is valid for 90 days, after which the individual must present the replacement document to complete the Form I-9.
- Form I-94 containing a temporary I-551 stamp and a photograph of the individual, which is considered a receipt for the Form I-551, Permanent Resident Card. The individual must present the Form I-551 before the expiration date of the temporary I-551 stamp, or within one year from the date of issuance of the Form I-94 if the I-551 stamp does not contain an expiration date.
- Form I-94 containing an unexpired refugee admission stamp. This is considered a receipt for either an Employment Authorization Document (i.e., Form I-766 or I-688B) or a combination of an unrestricted Social Security card and List B document or an unrestricted Social Security card in combination with a List B document to complete Form I-9 within 90 days after the date of hire, or in the case of re-verification, the date employment authorization expires.
In the above situations, an individual may present a “receipt” in lieu of a document listed on the Form I-9 to complete Section 2 of the Form I-9.
There are some categories of nonimmigrant visas which allow employers to accept a receipt, including for H-1B change-of-employer petitions (based on H-1B portability provisions). Also, since January 17, 2017, new rules provide for automatic extensions of validity periods of some categories of Employment Authorization Documents (EAD) for up to 180 days for individuals who:
- Timely filed to renew an Employment Authorization Document (EAD);
- Are applying to renew an EAD in the same category as the previous EAD; and,
- Are in a category that is eligible for extension – namely A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19.
7. Make Sure Everyone Signs and Dates Form I-9
One of the most common mistakes is to leave the signatures at Section 1 (Employee signature) and/or Section 2 (Employer signature) blank. Make sure all parties involved sign and date the form.
8. Set up a Reminder System for Re-verification Purposes
Employers who have hired and sponsored any foreign nationals must set up a calendaring system to ensure that it re-verifies the employee’s employment authorization and completes Section 3 of Form I-9. When re-verifying an employee’s employment authorization, care must be taken that the most current version of the I-9 is completed. If the version of the I-9 form pre-dates the current version of the form, a new I-9 form should be used.
9. I-9 Compliance Requires a Hard-Core, Zero Tolerance Policy
Enforcement is on the rise as cash-strapped government agencies ranging from the Department of Labor to DHS’ Immigration and Customs Enforcement (ICE) focus on I-9 audits and investigations. Under this restrictive climate, employers must have a zero-tolerance policy when it comes to the I-9 process.
10. No Matter What, Have a Clear, Written Policy for Best Employment Practices
Establish a written hiring and employment verification policy, which includes establishing an internal compliance and training program related to the hiring and employment verification process. Only have trained individuals conduct the Form I-9 and E-Verify process. Establish a protocol for responding to government correspondence indicating that there may be a discrepancy in the information provided by an employee (e.g. Social Security No-Match letters). Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently with respect to hiring, firing or recruitment or referral for a fee during the Form I-9, E-Verify or Social Security Number Verification Service (SSNVS) processes because of citizenship status or national origin. Also, make sure that all policies are consistently applied across the board.
Other issues to consider:
- Will you make copies of documents evidencing employment authorization?
- How will you correct mistakes?
- Do you have an “honesty” policy on handling employees who may not have been forthcoming about the validity of the documents they used for I-9 purposes, but who now “comes clean?”
- How do you treat employees who cannot provide proof of employment authorization within three business days?
- What is your I-9 process in merger/acquisition or restructuring situations?
- How do you organize and store your I-9s?
UPDATED: AUG 28, 2017