KEY POINTS:
- Employers must complete the I-9 form within three days of the start of work for each employee.
- Employment verification regulations (so-called “I-9 rules”) cover only true employees, not independent contractors.
- An employer cannot selectively hire, or refuse to hire, nationals from certain countries for any reason. That practice is “national origin discrimination” under both federal employment discrimination law and immigration law.
- Employers may only require the minimum identity and employment documents outlined in the I-9 handbook.
- I-9s need to be kept for three years from the date of hire AND for one year from the date employment ends.
HOW TO PREPARE I-9S FOR UNIQUE SITUATIONS
I-9S FOR EMPLOYEES WHO ARE REHIRED WITHIN A 3 YEAR PERIOD AND THE I-9 IS ON FILE WITH HR
Fill out the bottom portion, Section 3 to rehire without reviewing documentation UNLESS the original work authorization has expired. So, if the person is a US citizen, you can just fill out Section 3. If the person had a one-year work card, you have to see the new work document.
I-9S FOR EMPLOYEES WHO ARE HIRED EVERY OTHER YEAR
The easiest way to manage them is to keep the I-9s, and reverify them in Part 3 of the I-9 form when they are re-hired.
I-9S FOR EMPLOYEES IN OFF-SITE/REMOTE LOCATIONS
It is not unusual for a U.S. employer to hire a new employee who doesn’t physically come to that employer’s offices to complete paperwork. In such cases, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountants, attorneys, personnel officers, foremen, etc. An employer should choose an agent cautiously, since it will be held responsible for the actions of that agent.
Note: Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.
I-9S FOR EMPLOYEES SIGNING CONTRACTS OVER THE SUMMER FOR WORK AT THE BEGINNING OF THE SCHOOL YEAR
Section 1 of the I-9 needs to be completed on or before the first day the employee physically reports to work. If the first date the employee will be paid is the start date of the contract, send the contract and I-9 to the employee and instruct the employee to complete the I-9 on the first day of employment stated in the contract. The date of employment cannot be before the employee signs the I-9. The employer (or authorized agent, notary, etc.) then has 3 days to complete and sign off on Section 2.
I-9S FOR EMPLOYEES GRANTED LEGAL PERMANENT RESIDENT STATUS (LPR)
A new I-9 should be prepared with the information regarding the employee’s permanent resident status. Staple the new I-9 to the old I-9 and file them away.
I-9S FOR EMPLOYEES WORKING ON H-1B PORTABILITY
USCIS has not released explicit guidance regarding how to comply with I-9 requirements for H-1B workers who are utilizing portability. That said, it is clear that the law allows nonimmigrants in H-1B status to move to a new employer (and begin working) as soon as the new employer files an H-1B petition.
Therefore, companies typically rely on the unexpired I-94 card for the H-1B worker and proof of the filing, such as evidence of a Federal Express delivery to USCIS or receipt notice to fulfill the I-9 requirements.
The H-1B worker will still need to provide standard information to document their identity. To document their work authorization, we recommend making a copy of the Fed Ex confirmation showing delivery of the H-1B petition and/or receipt notice. Attach this information to the I-9, and annotate the I-9, “AC21 Sec. 105” or “Employment authorized by H-1B portability, Sec 105 AC-21.” We suggest annotating Section 2 of the form.
When the H-1B visa petition is approved, you will need to re-verify the I-9 in Section 3 (noting new I-94 expiration date). To be clear, you should not reverify their ID – only the work authorization documentation.
Instructions for completing the I-9 (H-1B portability):
Ask the employee to complete section 1, the “Employee Information and Verification” section. The employee should check the “[a]n alien authorized to work until ___” box, but will not be able to indicate an expiration date, since the employment authorization created by H-1B portability has no defined chronological limit. The admission number noted beneath should be the employee’s current I-94 number. The rest of the section should be completed in full, signed, and dated.
Complete section 2, the “Employer Review and Verification” section, and indicate under list A the employee’s foreign passport information (title, issuing authority, and expiration date) and current I-94 information (or leave the second “Document #” and “Expiration Date” subsections blank).
Alternatively, if the employer utilizes an automated I-9 completion system that requires the I-9 to be completed in its entirety, the employer and employee could complete the procedures described above, but indicate the expiration date of the employee’s I-94 in the “[a]n alien authorized to work until ___” box, even though that date reflects the duration of the employment authorization granted to the employee to work for another employer.
NOTE: the most recent version of the USCIS I-9 employer’s handbook states that only a formal H-1B receipt notice is acceptable proof of filing for portability purposes. This is not correct, and against the statutory language. However, we do recommend adding the H-1B receipt to the I-9 file as soon as it is received.