New I-9 FAQs on Transgender Employees, E-Verify Time Zone Issues, Closing Cases, and More!

There used to be a time (not so long ago) when Form I-9 policy changes occurred at a glacier’s pace. Every so often, the USCIS (formerly INS) would issue a new Form I-9 Handbook (known as the M-274), which featured frequently asked questions on how to complete America’s most complicated one-page form. And more often than not, HR managers were left wanting for more – because no matter how large the handbook became, unanswered questions always remained.

Fast-forward to today, and employers now have the opposite problem. Form I-9 (and E-Verify) policy updates can be published instantaneously through the USCIS’ aptly named “I-9 Central” website – usually as an addition to their “Questions and Answers” page. And while these new policy updates can be very useful (and frequently based on real-life inquiries), they’re often missed by HR managers entirely, relegated to the dustbin of Form I-9 minutiae.

In an effort to uncover (and dust off) some of these useful tidbits, we’re going to briefly discuss 5 recent Form I-9 and E-Verify updates which may actually change (or even enlighten) your compliance procedures and processes. Let’s begin!

Form I-9 and Transgender Employees

HR managers must manage gender transitions in the workplace very carefully, particularly in light of varying state laws and requirements. And although the Form I-9 is primarily an administrative process, some employers have sought guidance as to what steps should be taken when an individual informs an HR representative of a new name/identity (in order to avoid any perception of discrimination).

In its latest FAQ (dated November 7, 2017), the USCIS confirms that transgender name/identity changes should (in essence) be treated in the same manner as any other legal name change. Therefore, in the case of an existing employee who informs an HR representative of a transgender identity change, employers may (but are not required to) record the individual’s new name in section 3 of the Form I-9. While in the case of a rehire (or reverification of work authorization), employers are instructed to record the name in section 3 as per the instructions.

And for either scenario, employers are advised to take steps to be “reasonably assured” of the new identity, including asking for a justification and name change documentation. It’s important to note, however, that this is not strictly required, and employers should take care when requesting such information. When in doubt, make sure to check with your counsel.

It’s also important to note that this is not the first Form I-9 policy change relating to transgender employees. In 2016, the USCIS changed the “Other Names Used” field in section 1 of the Form I-9 to “Other Last Names Used” in order to help protect the privacy of transgender individuals who are new to the organization (and don’t want to reveal a previous identity).

What should I do if my transgender employee changes their name?

As stated in The Handbook for Employers (M-274), in the case of a rehire or reverification, if employees have had a legal name change, record their new legal name in the space provided in Section 3 of the Form I-9, Employment Eligibility Verification. If you learn of employees’ legal name change at any time other than during a rehire or reverification, USCIS recommends that you update Form I-9 with their new name in the space provided in Section 3; however, this is not required. It is important that you maintain correct information on the Form I-9.

In either situation, you should take steps to be reasonably assured of your employees’ identity and the accuracy of their claim of a legal name change. These steps may include asking the employee to provide justification for the legal name change and documentation of the name change to keep with Form I-9. This ensures that your actions are well-documented in the event of a Form I-9 inspection.

Last Reviewed/Updated: 11/07/2017

Additional Other Last Names Used

Speaking of the Other Last Names Used field, the USCIS has also added a new FAQ to address a Form I-9 spacing issue – what happens if your employee has multiple last names and can’t fit them into the section1 field?

In response, the agency noted that the employee may use the margin next to the Other Last Names Used field in section 1 to provide additional names as long as it doesn’t interfere (i.e., obscure) any other required information on the form. Alternatively, you can have the employee enter the additional last names on a separate sheet of paper which is signed, dated, and attached to the Form I-9.

If you opt for solution #1 (having the employee write in the margin), I also suggest that you ask the employee to write his/her initials and date next to the entry (just to avoid any potential scrutiny in the event of an audit). As with all things I-9 related, transparency is key, and you always want to make sure that an auditor can tell who made a change on the Form I-9 and when it was completed.

Section 1 of the Form I-9 now contains an Other Last Names Used field. Where should my employee enter additional last names used that do not fit in this field?

If employees need extra space to enter additional last names that do not fit in this field, they may use the margin next to the field, as long as it does not interfere with other information required on the form. Your employees may also enter additional legal last names on a separate sheet they have signed and dated. This separate sheet must be attached and retained with the employees’ Forms I-9.

Last Reviewed/Updated: 10/05/2017

E-Verify Time Zone

One of the most challenging aspects of managing an E-Verify program is ensuring that all of your new hire cases are initiated within three business days after the employee starts work for pay. Three days may seem like a sufficient amount of time, but there are a variety of potential obstacles which can get in the way (e.g., section 2 not completed until end of day 3, lack of Internet access at verification site, etc.). And while the USCIS excuses certain types of E-Verify delays (e.g., waiting for the employee to obtain an SSN), the agency will flag repeated tardiness as a potential compliance issue.

In an effort to ensure timeliness (and avoid the dreaded E-Verify compliance notice), HR managers must carefully monitor the 3-day deadline and send frequent reminders to all staff members in charge of verification.  Despite these best efforts, cases are sometimes submitted down to the wire, which begs the question – when exactly will an E-Verify submission be considered late by the system?

The USCIS recently addressed this issue by noting that E-Verify processes all of their submissions according to Central Standard Time (CST). So if you’re in California and creating an E-Verify case on day 3 at 11:00pm local time, your submission is already 2 hours late as far as the E-Verify system is concerned.

But fear not, for the USCIS has provided an additional suggestion which may mitigate the risk of being found non-compliant. In the event your case is late due to a time zone issue, the agency suggests that you attach a note to the Form I-9 explaining the discrepancy. You might also consider writing this same explanation in the E-Verify late reason field (but note, this is limited to 200 characters, so your excuse will have to be relatively brief).

In order to be compliant with the E-Verify three-day rule and company operating time zones, under which time zone does E-Verify process cases?

E-Verify currently processes submission times under Central Standard Time (CST). Employers may attach a note on the Form I-9 indicating time zone discrepancy for cases that may appear late.

Last Reviewed/Updated: 09/26/2017

Further Action Notice Needed for Obvious Errors?

Under the E-Verify program rules, employers must promptly notify employees of a tentative nonconfirmation (TNC) by providing them with the Further Action Notice (“FAN”) generated by the system. The USCIS carefully monitors employers’ compliance with this requirement in order to ensure that employees are afforded every opportunity to resolve a TNC)and continue working with the organization.

But what happens when an HR manager receives a TNC for a case which involves an obvious error (such as incorrect spelling of a name or wrong attestation)? The HR manager can close the case as “invalid” and create a new one, but is he/she still obligated to provide the employee with the FAN letter in this instance?

In its reply, the USCIS noted that if the employer closes a case using the closure statement “The case is invalid because data entered is incorrect,” no further action is required (meaning, you don’t need to print the FAN or show it to the employee). But, there is another important point worth noting (not mentioned by USCIS) in connection with email notifications that are automatically sent out by the system.

If your new hire employee opted to provide an email address in section 1 of the Form I-9 (and you correctly entered that in the E-Verify submission), the system will automatically send a TNC notification email to the employee, which directs him/her to contact the employer for a copy of the FAN letter and additional information. Needless to say, this email may be confusing (or concerning), so I recommend you proactively reach out to these employees to explain that an error was made and that they can disregard the notification.

Are employers required to print the further action notice and referral letter when closing a case as “invalid” because the data entered was incorrect?

If the employer closes a case using the closure statement “The case is invalid because data entered is incorrect,” no further action is required. The employer is not required to print the further action notice for its records.

Last Reviewed/Updated: 06/23/2017

E-Verify Automation for Electronic I-9 Systems

One of the most tedious (and potentially laborious) processes associated with E-Verify is closing out a case which has a reached a final decision (whether that be employment authorized or a final nonconfirmation). The USCIS has stated that employers must close every case they create, a process which includes indicating whether the new hire is still employed with the organization and selecting an appropriate “case closure statement” which describes the final outcome. Employers who fail to routinely close cases may be contacted by E-Verify’s Monitoring and Compliance division.

To speed up this process (and ease the pain of performing necessary clean-up from time to time), certain electronic I-9 providers have developed smart tools to automate the closing of multiple E-Verify cases at once by grouping all of the cases together and selecting an appropriate case closure statement which can be submitted for each one individually. In a recent FAQ, the USCIS officially blessed this feature by noting that there is nothing in the program rules which would prohibit the closing of multiple cases in rapid succession.

While this announcement is certainly good news for employers (who understandably wish to create efficiencies wherever possible), it’s important to remember that other types of “automation” can run afoul of the Form I-9 and E-Verify rules and ultimately get an employer into trouble. The E-Verify Memorandum of Understanding (“MOU”) for software providers specifically notes that “any failure to make its system or interface consistent with proper E-Verify procedures can result in DHS terminating the Web Services E-Verify Employer Agent’s agreement and access with or without notice.”

This risk is particularly pronounced for so-called “all-in-one” electronic I-9 systems that combine a variety of onboarding tasks (including the I-9) into one continuous interface. Many of these applications improperly blend the I-9 and E-Verify steps together, restrict document choices, or over-automate the population of data – which can sometimes lead to compliance issues. When in doubt, it’s always advisable to work with immigration counsel and choose a trusted software provider that specializes in Form I-9, E-Verify, and immigration compliance.

I am a web services E-Verify employer agent and one of my accounts would like to give their employers the ability to automatically close cases.

The proposed feature describes grouping cases with the same case closure statement, selected individually, affording the user the opportunity to choose the appropriate case closure statement for each case, then sending those selections via web services. Though it might appear that all the cases were closed with one action, the software must send each case closure statement individually for each case via web services. The interface control agreement (ICA) does not prevent a system from closing many cases in rapid succession and there is no subsequent system warning when cases are closed quickly, so closing cases through grouping and selecting the same closure code should not cause red flags. There is nothing preventing the agent/user from implementing this action(s). Some software systems have already implemented this type of feature successfully.

Last Reviewed/Updated: 06/23/2017

That’s it for now! Stay tuned for more updates to the ever-changing Form I-9 and E-Verify world. And in the meantime, if you need more information on Form I-9 compliance (and the use of electronic I-9 systems), please feel free to contact us here. You can also subscribe directly to this blog (and receive instant email notifications) by entering your email address in the following form.

*********

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 Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.