I-9 Reporting and Using E-Verify

At the time of hire, employers must complete Form I-9, which is an employment eligibility verification. Many employers have utilized E-Verify to accomplish this easier. E-Verify is an online system that compares any information obtained by Form I-9 with government records, confirming an employee’s identity and authorization to work in the United States. First and foremost, it’s important to have a certain degree of understanding of the requirements of Form I-9. Instructions on the form allow presentation of any documents from the Lists of Acceptable Documents, either one List A document or a List B document in addition to a List C document. So long as the documents appear to be genuine and in relation to the employee, employers are required to accept them. Employers are not permitted to request any further documentation or different documents than those that have been offered, plus they cannot  reject documents that are seemingly genuine based on the citizenship status or national origin of the employee.

Employers enrolled in E-Verify benefit from electronically ensuring a match between information provided on the Form I-9 and government records. Should an employer choose to work with E-Verify during this process (required for some; optional for others), federal law requires that employers follow rules of both Form I-9 and E-Verify consistently. Section 1 of Form I-9 must be completed in its entirety by employees on the first day of employment; the term ‘employee’ in this respect represents any and all workers who are paid wages or salary for services rendered or labor performed. The first day of employment qualifies as the first day an employee works for wages or other payment. This section may be completed before this date, but only after the acceptance of an offer of employment. Normally, employees may voluntarily provide their Social Security numbers on the form, but they should not be required to do so. To ask an employee for their Social Security number or for a document that houses that number could be used against an employer in future discrimination cases. However, in the case of an employer using E-Verify, Social Security numbers are required by the system. While restricted SSA cards (those that are noted as “Not Valid for Employment”) should not be accepted for I-9 purposes, they can be accepted for payroll purposes from employees who have already met I-9 requirements.

Section 2 of Form I-9 must be completed by employers within three days of an employee’s date of hire. Employees whose contract outlines an employment agreement lasting fewer than three business days should complete both Sections 1 and 2 prior to end-of-day on that employee’s first day on the job. If an employee is terminated within the first three days of employment, the I-9 must be completed before they exit the job. Section 2 requires a physical examination of the documents presented by an employee that establish their identity and employment authorization. Again, employers should not specify which documents they’d prefer from the Lists of Acceptable Documents, as it would be a violation of the form’s rules. Employers have an obligation  to reject a document if it does not appear to be genuine or relate to the employee. Copies (whether physical or electronic), faxes, or expired versions of documents should also be refused, except in the cases of certified copies of birth certificates.  If an employer struggles to determine whether or not a document is genuine, they may rely on help from INS; should you choose to seek their assistance, and a document that was thought to be genuine is in fact not, the employer will bear no responsibility from the INS.

Should an employer suspect that an employee is not authorized or that their documentation is false, they are allowed to question an employee and ask that they re-submit proper documentation for review. Once the employee has resubmitted, if their documents still do not satisfy I-9 requirements, employers are advised to terminate employment. In the event that an employee is hired with falsified documents but later provides authentic paperwork, employers are not obligated to terminate the employee but should update their I-9s for accuracy. However, company policies regarding falsified information and/or documentation may apply.

With regard to non- U.S. citizens, it’s important to note that the status of “Resident Alien” cards, “Permanent Resident” cards, and “Alien Registration Receipt” cards, as well as Forms I-551 are subject to expire and new cards will need to be obtained to maintain compliance. Employees who submit any of these cards for employment purposes should not have their authorization subjected to reverification by their employer.

I-9s should be preserved for the full-length of personnel’s employment, as well as three years beyond the date the employee was hired or one year beyond an employee’s termination, whichever date is last. Should an official inspection of employee I-9s take place, employers will receive at least three (3) days’ advance notice; employers should be prepared and proactive with employee I-9s available in their original or electronic form to be provided upon request. To that end, I-9s should not be kept in employee personnel records.

In using E-Verify, it is important that employers are aware of the differences in requirements between E-Verify and Form I-9. First, whereas Form I-9 is a mandatory document that must be completed, E-Verify is a system that may be used voluntarily by most employers. Some state laws or federal regulations may require an employer to use E-Verify. Remember that although Form I-9 does not require a Social Security number or a photo on identity documents, E-Verify requires both of those things. Many employers add E-Verify to their pre-existing employment eligibility verification process in order to gain peace of mind that they are maintaining compliance. Once an employer obtains a report that deems an employee “verified” to work, the report is attached to the employee’s Form I-9 or the case verification number is reported on the form. The employer then closes the case and the E-Verify process is completed.

 If you need any assistance maintaining completed I-9s so that your company stays within regulatory compliance, please reach out to us.