by Laura Pokrzywa
Federal law requires employers to verify the work authorization of all employees by reviewing the employee’s documentation and completing an Employment Eligibility Verification (Form I-9). As we reported last Spring, the current form expired in March of 2016, but employers were permitted to continue using the expired form until the government issues the updated form. At the end of August, the Office of Management and Budget (OMB) approved the revised Form I-9. We expect the U.S. Citizenship and Immigration Services (USCIS) to publish the new form in just a few weeks.
The USCIS is the government agency that oversees lawful immigration to the United States. That includes oversight of I-9 compliance. The agency is expected to publish the revised form by Nov. 22, 2016. In the meantime, employers may continue using the current version of Form I-9 (with a revision date of 03/08/2013) until Jan. 21, 2017. After that all previous versions of Form I-9 will be invalid.
As a reminder for all employers, in order to keep your company compliant with this federal law, you must be diligent in the following areas:
- New hires: Employers must require a fully completed Form I-9 for all new hires within three days of their first day of work. Follow the instructions on the form when gathering documentation from your new hire and be sure to fill out the form completely,
- Proper storage: Form I-9s must be retained and stored in either paper, electronic, or microfilm/microfiche format. It is recommended that you securely store these forms and the copies of the documents used for verification in one file, separate from personnel files. This will allow you to present them to government officials for inspection within three days of the date on which the forms were requested, as required by law,
- Proper maintenance: Employers should keep a properly completed Form I-9 for all current employees. Regular self-audits should be conducted to ensure compliance. If any forms are incorrect or incomplete make the needed corrections or additions as soon as the oversight is discovered. Do not change any dates on the form. Simply put a note with the corrected form, describing the action taken, the date it was taken and the name of the person making the correction.
- Handling expired documentation: (a) Never accept expired documentation. (b) Do not allow an employee to work with an expired work-authorization document. Instead, re-verify expiring work authorization documents before they expire (see below for more details about re-verification). (c) Do NOT re-verify U.S. passports or passport cards, Permanent Resident or Resident Alien Cards, or any other List B identity document.
According to USCIS, if an employee presented a valid, current Permanent Resident Card (form I-551) for section 2 of the Form I-9 when they were hired, it is not necessary to re-verify their resident status when that card expires. Expiration of their “green card” does not revoke their permanent resident status. However, it is highly recommended that the employee renew the expired card. Without a current Permanent Resident Card, their ability to travel and to verify their eligibility to work in the U.S. is obviously jeopardized.
So when does an employer need to re-verify an employee’s eligibility to work? According to the USCIS website, “When an employee’s employment authorization or employment authorization documentation (in most cases) expires, an employer must re-verify that the employee is still authorized to work.” Employers accomplish re-verification by completing section 3 of the employee’s Form I-9. It is best to remind employees at least 90 days before the date re-verification is required that they will need to present documentation showing continued employment authorization on the date that their employment authorization or original documentation expires.
The easiest and quickest way to verify the eligibility of new hires is using the internet-based system called E-Verify. It is free and required for federal contractors and all employers in certain states. With a completed Form I-9 and the new hire’s social security number, an employer can determine eligibility within seconds. This system does not replace the legal requirement to complete and retain those I-9 forms, but it is one more (simple) way to ensure legal compliance and avoid costly mistakes.
For more information about E-Verify, or for directions for renewing green cards or re-verifying an employee’s eligibility to work, visit the U.S. Citizenship and Immigration Services website.
If you have questions about any HR issues, you can email us at email@example.com.
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