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Form I-9 & E-Verify For Dummies Blog Series 2: What You Should Know About Reverifying, Updating and Retaining Documents

With the new year upon us and hiring in the US at an all-time high, the Form I-9 is once again taking center stage as HR managers try to figure out how to correctly verify the employment eligibility of their newly hired employees. The Form I-9 looks fairly simple (as far as government forms go), but the underlying rules present a virtual labyrinth of traps that are not always easy to spot.

To help HR managers demystify this obligation, we began a four-part blog series last month on our Form I-9 & E-Verify For Dummies ebook, a short guide designed to highlight the most important considerations in completing our favorite 2-page form. You can read (or revisit) part 1 of the series here:

Series 1: Common Mistakes of Completing Section 1 and 2 and How to Avoid Them

In our second installment, we are going to focus on managing your Form I-9 obligations after an employee has been hired and the Form I-9 has been successfully completed. Because contrary to popular belief (and to the chagrin of many HR), the I-9 is not always a “one and done” form.

Form I-9 & E-Verify For Dummies Blog Series 2: What You Should Know About Reverifying, Updating and Retaining Documents

There’s quite a bit you should know about reverifying, updating and retaining documents, but let’s break it down to the basics to make it as painless as possible.  

Reverifications:

As referenced in Blog Series 1, there are some tricky nuances to keep in mind when employees and their employers complete a Form I-9.  If not completed correctly (yes, even minor mistakes count), the employer runs the risk of some severe penalties.  Now, once an I-9 is completed, there are some instances in which you want – or are required – to update an employee’s I-9.  In these cases, you must do so by using Section 3 of the Form I-9.

Reverification should only be completed for employees who have expiring work authorization. There are two simple ways to determine whether or not an employee has an expiring work authorization (as indicated on the individual’s Form I-9):

  • The employee has checked the fourth attestation box (an alien authorized to work) in Section 1 and has provided an expiration date; or
  • Section 2 contains documents in List A or List C that reflect temporary work authorization in the U.S. (our dummies book provides several examples)

Then, in order to complete the reverification process, your employee must present either a List A or List C document that shows that he or she has current work authorization. After you review the document for genuineness, record the information in Section 3 and make sure to sign/date where indicated.

Important: if the new document presented also reflects temporary work authorization, you’ll need to reverify the employee again in the future using another Section 3.  

Form I-9 Updates:

In other situations, you may wish to “update” a completed Form I-9 in order to maintain accurate records and make an audit of your records go more smoothly (a worthy goal for any employer!). One of the most common reasons for updating a Form I-9 is to reflect an employee’s name change (e.g., due to marriage). The USCIS recommends recording name changes in Section 3 in the name fields provided.

Are you in trouble if you haven’t been recording name changes on your I-9s? Not necessarily. The only time you absolutely have to record a name change is if you are rehiring or reverifying an employee in Section 3. In all other cases, it’s simply a recommendation. Check out our dummies book for more helpful hints on recording name changes.  

Rehires:

What happens if you rehire a former employee? Simple. There are two go-to options. You can either have the individual complete a new Form I-9, or, if the rehire date is within three years of the date when you completed the employee’s last Form I-9, you can just fill out Section 3 instead (be sure to review the employee’s previous Form I-9 to make sure it’s eligible).

One last critical piece to keep in mind for rehires: if you are participating in E-Verify and rehire an employee within three years of the previous Form I-9 completion date, you can only choose to use Section 3 if you previously submitted an E-Verify case for the employee which received an employment authorization result. If not, you must complete a new Form I-9 and E-Verify case.

Retaining Documents:

The million dollar question, how long do you need to retain the Form I-9 along with any copies you have made of related documentation? Plain and simple, here’s what you need to know:

1) If your employee is on the payroll you need to have their Form I-9

2) If they terminated or quit you need to consider two dates:

    • Find out when the employee first started working for you for pay, and add three years to that date.
    • Then check the termination date and add a year to that.
    • Whichever date is later is how long you must retain their documentation.


Ready for more? Be on the lookout for the remainder of the blogs in the Form I-9 & E-Verify For Dummies four-part blog series.  And, if you haven’t already done so be sure to download the Form I-9 & E-Verify For Dummies eBook.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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