Top 10 Practice Pointers for the I-9 Process

By Tien-Li Loke Walsh

 

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.

COMMON MISTAKE!
    • Using an older version of the form, or using the Spanish version of the form. The Spanish version of the form may only be completed by employers and employees in Puerto Rico, who have the choice to use the English or Spanish version. Other employers in the 50 states and other U.S. territories may use the Spanish version of Form I-9 as a reference, but the English version of the form must be completed and retained.
 

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.”

COMMON MISTAKE!
    • Allowing the employee three business days to complete Section 1 or taking longer than three business days to complete Section 2.
 

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.

COMMON MISTAKE!
    • Asking the employee for specific documents and/or accepting documents from the wrong combination of the List. For example, an employer cannot accept one document from List A (e.g. U.S. passport) and one from List B (driver’s license). Similarly, an employer cannot accept one document from List A (e.g. U.S. passport) and one from List C (e.g. Social Security Card). These combinations are not acceptable.
COMMON MISTAKE!
    • Accepting expired documents. All documents presented by an employee for I-9 purposes, including passports and driver’s licenses must be unexpired.
COMMON MISTAKE!
    • Accepting documents that are no longer on the List of Acceptable documents. For example, a naturalization certificate is no longer an acceptable List A document. However, USCIS through its FAQ section has advised that a naturalization certificate is acceptable as a List C, #8 document.
COMMON MISTAKE!
    • Accepting a restricted Social Security Card (i.e. a card that has “not valid for employment without INS/DHS authorization). In order to accept a Social Security Card as a List C document, it must be unrestricted.
COMMON MISTAKE!
    • Photocopying the required document(s) instead of completing Section 2. Photocopying the relevant documents does not relieve an employer from the obligation to complete the information at Section 2 of the I-9 form.
 

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).

COMMON MISTAKE!
    • Oftentimes, employees provide too many documents from the List and an employer ends up using all of the documents to err on the side of caution. Do not use a document from List A, B and C when completing Section 2.
COMMON MISTAKE!
    • Asking for specific documents to complete Section 2 (e.g. asking for a green card from a lawful permanent resident or asking for a passport from a U.S. citizen). You must allow the employee to choose the appropriate documents from the List of Acceptable Documents.
 

5. Only Accept Original Documents

To complete Section 2 of Form I-9, an employer must examine the original document.

EXCEPTION:
    • An employer may accept a certified copy of a birth certificate.
Also, the person signing the Attestation at Section 2 must be the same person who views the original document.

COMMON MISTAKE!
    • The original document is viewed by an assistant or someone else, but the HR Manager or Director signs the attestation. The person who signs the attestation at Section 2 of the Form I-9 must be the same person who views the original documents presented by the employee.
 

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.

  1. 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.
  2. 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.
  3. 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:

  1. Timely filed to renew an Employment Authorization Document (EAD);
  2. Are applying to renew an EAD in the same category as the previous EAD; and,
  3. 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.
COMMON MISTAKE!
    • Accepting a receipt for the renewal of an expired document, such as a driver license or passport. This does not meet the “lost, stolen or damaged” test.
COMMON MISTAKE!
    • Accepting a receipt showing that a person has applied for the renewal of an Employment Authorization Document (EAD). This does not meet the “lost, stolen or damaged” test.
 

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.

COMMON MISTAKE!
    • Employee forgets to sign and/or date Section 1, or dates it with the date of birth.
COMMON MISTAKE!
    • Employer forgets to sign and/or date Section 2 and also forgets to include the date of hire.
 

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.

COMMON MISTAKE!
    • Employers forgetting to re-verify their foreign national employees before or on the day their employment authorization expires.
COMMON MISTAKE!
    • Trying to re-verify at Section 3 when an employee’s identity document expires. Employers are only required to verify that an employee has continued employment authorization. There is no requirement to re-verify when someone’s identity document expires (e.g. there is no need to re-verify when a passport expires or a driver license expires).
 

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.

COMMON MISTAKE!
    • Employers bend the rules or turn a blind-eye when an employee cannot produce documents evidencing their employment authorization within three business days. Employers can be subject to penalties for knowingly continuing to employ an unauthorized worker if it continues to allow that person to work.
 

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