Clarification: Employers have Four Days to Complete Section 2 of the Form I-9 and Initiate E-Verify

[Editor’s Note: today’s blog is courtesy of Dawn Lurie and Kevin Lashus of Greenberg Traurig]

During the E-Verify Redesign trainings, U.S. Citizenship and Immigration Services (USCIS) quietly “reminded” employers that companies have three days after the employee’s date of hire to open a case in E-Verify.  USCIS also alluded to the fact this four day or “Thursday rule” also covered the timing on the I-9.  This was news to us.  Over the past few weeks, USCIS was encouraged to address the confusion. The agency went on to confirm that the determination of the hire date for E-Verify isn’t always “clear and simple” and noted as much on their webpage while further discussing the date of hire.

We were intrigued and began to consider the implications of what we considered to be a sweeping change of I-9 related protocols for employers. While opinions differ, including suggested protocols contained within some of the electronic I-9 vendors’ applications, we believe that there is a difference in the E-Verify hire date–the date that is placed in the employer certification (date employment began)–and, the date on which the I-9 needs to be signed (ahh-but that is for another blog post!).

After consulting the legislative history, reviewing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’s references to the Basic Pilot program, we agreed that a basis for affording the additional day could be argued.  However, the issue of the date of hire and timing for I-9 purposes was far more complicated.

Whether the USCIS intended to afford an additional day for not only E-Verify completion, but to extend the time to complete Section 2 of the I-9, required immediate clarification.  After reaching out to USCIS for guidance, E-Verify representatives confirmed that they had intended to provide a four-day window (Monday hire date-Thursday deadline) to complete both E-Verify and section 2 of the I-9.  Performing further due diligence led us to make a few more telephone calls and it quickly became apparent that the implications of such guidance had not been thoroughly considered by USCIS.   Moreover, it was unclear whether Immigration and Customs Enforcement (ICE)–the agency that is primarily responsible for auditing the I-9 forms–had been consulted to ensure consistency in interpretation and more importantly, enforcement.  Following our discussion, on June 30th, USCIS issued a public clarification (presumably after clearing it with the USCIS Office of the Chief Counsel), stating that:  “If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer).  The first day the employee starts work for pay is not included in the three business day calculation.”

Now, all efforts were focused on obtaining concrete guidance from ICE on whether it planned to agree with USCIS’ interpretation of the regulation, which states that Section 2 of form I-9 must be completed within three business days of hire.

The three day issue was not entirely new to ICE; their attorneys have been grappling with the definition of “three days” in the context of the new Electronic I-9 regulation currently being drafted.  There are some attorneys who argue that 8 CFR §274a.2(b)(ii)(B) does not clarify whether it allows for three federal working days or three employer business days.

Today, critical confirmation from ICE was obtained; indeed the agency would respect the “Thursday Rule”.  At this point in time, while they do not intend to issue separate guidance on this, the agency quickly forwarded the USCIS posting to the field and to their forensic auditors.  ICE could not recall any investigations where companies have received fines solely on the basis of being one day outside of the previous interpretation of within three days of hire.  We would be interested to learn if this is not the case.

Companies should seek legal advice prior to changing any I-9 related policies providing an additional day to present Section 2 documents.

The bottom line is: companies cannot afford this type of surprise interpretation of long standing regulatory authority.  Instead, employers require guidance, consistency, and clarity from the federal government.  Employers are already struggling with immigration-compliance-related-issues and anything to further muddy the waters will not be well received.  It is hoped that this newest episode of panic has provided both USCIS and ICE with a further incentive to increase transparency,  increase dialogue with the public sector, provide training, and develop a targeted I-9 education campaign after updating the M-274 employer handbook–with clear consistent direction for the smallest, as well as the largest, of U.S. employers.