Does the I-9 Receipt Rule Really Mean What It Says?

[Editor’s Note: Today’s blog is courtesy of Sharon Mehlman, Partner at Larrabee | Mehlman | Albi | Coker LLP in San Diego, California. Ms. Mehlman’s immigration law practice includes assisting U.S. employers with I-9 and E-Verify compliance.]

You have an employee who needs to complete his Form I-9. He reviews the list of acceptable documents and gives you a U.S. passport. However, the passport has expired so you cannot accept it since the current I-9 guidance states that you may only accept unexpired documents. The employee then tells you he has his driver’s license for a List B document but he has lost his Social Security card. What’s an employer to do?

The regulation at 8 CFR 274a (b)(I)(vi)(A) allows for the acceptance of a receipt notice for a lost, stolen, or damaged document. In this instance, the receipt can be used in lieu of a List A, B, or C document. However, within 90 days of accepting that receipt notice, the actual document must be presented to complete the I-9 process. This is further discussed in the USCIS M-274 Handbook for Employers (see page 6).

In most cases the employee comes back within the 90 days with the document, so there is no issue. The Form I-9 is updated and that’s that. However, what if all doesn’t go as planned? In the previous hypothetical, what if on day 89 the employee says that his new Social Security card has not arrived and the Social Security Administration says it will be a few more weeks. Employee has checked the “U.S. Citizen” box in Section 1. He has since renewed his passport and wants to provide that to fulfill the I-9 requirement. Can the employer now accept the new U.S. passport?

It was only when I was faced with this scenario recently that I really read the exact wording of the M-274 guidance and the regulation. Does it really say that an employer can only accept the original document for which the receipt was previously provided? This makes sense if the purpose is to “validate” the time period when employee was working on the receipt notice. However, what would OSC say if the employer took the US citizen employee off payroll and refused the new unexpired U.S. passport as an I-9 document? The employer would be following the USCIS guidance to the letter of the law, but does the receipt rule really mean what it says? I suppose that the employer could always term the employee and then immediately rehire, now accepting the passport. Does that extra step really make sense though? Would ICE even have an issue with this potential “violation” during an I-9 audit?

Answers are seldom crystal clear and don’t always surface until and unless the issues arise during actual audits (including an ICE I-9 audit) of clients. It just shows that there is always something new to ponder when working with I-9s!

[Editor’s Note: In I-9 compliance, Ms. Mehlman has kindly provided us with an example of what can appear to be a minor question but can balloon into a larger, non-compliance issue that may potentially violate the law. As we always recommend, seeking expert counsel from an experienced and licensed attorney helps to navigate through compliance minefields like this one.  Sign up for our newsletter to stay up to date on these issues and to connect with legal counsel in your area.]