Form I-9, E-Verify Processes Present Compliance Pitfalls

Compliance issues around the Form I-9 employment verification process include document policies and unnecessary reverification, while the Covid-19 accommodations for the process are unlikely to be extended past April 30, two U.S. government officials said March 21.

The U.S. Citizenship and Immigration Service’s Form I-9, Employment Eligibility Verification, must be used by all employers to verify the identity and employment authorization of all new employees, Michelle Vivian, an official with USCIS’s Buffalo Verification Operations Center, said. Employers should use the most recent version of Form I-9, which has a revision date of Oct. 21, 2019, and must provide employee the complete instructions for the form, Vivian said.

Employers must not discriminate against employees based on national origin or citizenship, Vivian said.

Employees must complete Section 1 of the form by their first day of work, while employers must fill out Section 2 within three days after the employee’s first day of work, Vivian said. Section 3 is filled out when an employee’s employment authorization expires or when an employee is rehired, she said.

Employers must in general physically examine the documents an employee provides with Form I-9; however, employers operating remotely can inspect documents remotely through April 30, Vivian said.

The measure “probably won’t be re-extended,” Vivian said. Temporary guidance allowing employers to accept List B documents that expired starting March 1, 2020, also expires April 30.

Best practices for E-Verify include completing Form I-9 first before entering it in E-Verify and having more than one employee work with the form, Vivian said.

Unfair Documentary Practices

Unfair documentary practices are an extremely common compliance issue related to Form I-9, Alberto Ruisanchez, chief of the Immigration and Employee Rights division of the Justice Department’s Civil Rights Division, said.

Employers may not request more documents than what are required or different documents than the employee provides, cannot specify that certain documents must be provided, and cannot reject reasonably genuine-looking documents, Ruisanchez said.

For example, if an employee indicates on Form I-9 that they are a lawful permanent resident but does not provide their green card, the employer cannot ask for it, Ruisanchez said.

Other forms of discrimination prohibited by the Immigration and Nationality Act include that based on citizenship or national origin, as well as retaliation against employees, Ruisanchez said. Generally, employers with more than four employees are subject to the act’s prohibitions, but Ruisanchez’s division only investigates national-origin discrimination at employers with four to 14 employees. Employers with 15 or more employees are handled by the Equal Employment Opportunity Commission, he said.

Reverification is a common situation in which employers run afoul of the prohibition to ask for more or different documents, Ruisanchez said. Employers that unnecessarily reverify employees are asking for more documents than are required, he said.

“A lot of employers forget that you should never reverify permanent resident cards,” Ruisanchez said.

Ruisanchez’s division settled with two employers in 2021 for unnecessarily reverifying noncitizens, he said. One requested employees prove their continued work authorization, while another asked employees to provide specific documents relating to employment authorization, he said.

Employers commonly have questions surrounding the expiration of employment authorization documents, which are sometimes extended through Federal Register notices and therefore may be valid despite displaying a past expiration date, Ruisanchez said.

Another common question involves employees that start work while waiting for a Social Security number, which is allowable if they can otherwise satisfy Form I-9 requirements. Entering an employee in E-Verify requires a Social Security number. However, for employees waiting for an SSN, the employer should wait until the employee receives the number and enter the lack of SSN as the reason for delay, Ruisanchez said.