Old Myths and New Realities: The Tender Mercies of I-9 Re-verification
[Editor’s note: today’s blog is courtesy of Gary Endelman of Fong & Associates LLP].
Surrounding the question of I-9 re-verification are a series of time-honored myths that have guided those who seek the truth since the invention of fire lit the way out of the caves. Is the faith of our forebears as true for us as it was in years gone by? Let’s look a bit closer at the top 13 I-9 myths (feel free to make up your own list of favorites!)
Myth #1: All I-9 identity documents need to be re-verified
Reality: There is no need to re-verify List B identity documents such as drivers’ licenses, school ID cards or US military cards. List B identity documents do not need to be re-verified when they expire. Exhale! This does not sanction the acceptance of expired identity documents. It only means that they must be valid when you first accept them; they can expire later with no problem. So, for example, if a US passport expires while someone is employed, the commandment to re-verify given at Sinai is not triggered.
Myth #2: Since the Permanent Resident Card on Form I-551 has a 10-year expiration date, the I-9 must be updated prior to such expiration.
Reality: Expiration dates on I-551 permanent resident cards have no impact at all on current employment. Employers are not required or allowed to re-verify such employment authorization. The card may lapse but the right to work never does. What a relief!
Myth #3: There is a modest “grace period” after the expiration of I-9 work authorization for the employer to re-verify if they have a good excuse or it happened for reasons beyond their control
Reality: No such luck. Re-verification is strict liability territory. It must be done in advance not after the fact. Make sure you have an I-9 early warning system that provides adequate time for re-verification. 90 days sounds right.
Myth #4: In the context of H-1B portability, the new employer need not update the I-9 when the employee starts, but rather can wait until H-1B approval time.
Reality: Too late brother. The alien beneficiary’s I-9 must be completed at the time that he or she starts employment and again at the time of ultimate H-1B approval (assuming the employee starts upon the filing of the new H-1B petition). In the latest version of the Form I-9 bible (akathe M-274), the USCIS recommends that employers retain a copy of the new Form I-129 (H-1B petition); proof of payment for the filing; and evidence that the I-129 was mailed to USCIS. Then, when the I-797 Notice of Approval comes in, employers should update the I-9 with the new I-94 that is attached at the bottom.
Myth #5: There is a requirement for an employer to complete Section 3 Re-verification when an employee gets married.
Reality: Once again, the latest M-274 Handbook for Employers sheds some light on this burning question. According to the USCIS, employers are not required to update the Form I-9 when an employee changes his or her name. However, USCIS “recommends” that employers maintain correct information on Forms I-9 and note any name changes in Section 3. Why should employers update section 3 for a simple name change which does not adversely affect employment authorization? The primary reason for doing so would be to facilitate I-9 review by ICE in the event of an audit. So when ICE compares your employer payroll roster against your I-9s, you won’t be dinged for a missing I-9 when in fact, the employee just changed names.
Myth #6: Any information as to possible illegal alienage, even from an anonymous source, gives sufficient constructive knowledge to complete a new I-9
Reality: This goes too far and opens the employer up to charges of discrimination on grounds of over-documentation and selective application based on national origin or citizenship grounds. An anonymous phone call, for example, is not enough to throw away an existing I-9, even if the A# is missing, and do a new one. I-9 Zen Master Josie Gonzalez recommends that taking a second look at the I-9 is enough but not more than that. While a conscientious employer cannot afford to dismiss what might be serious and relevant information, regardless of the source, this does not mean that going back to Square One makes sense. There is a difference between willful indifference and going crazy.
Myth #7: Conditional Permanent Resident “Green Cards” must be re-verified
Reality: At first glance, this seems correct. After all, unless a conditional resident makes timely application to remove or lift the condition, they run the risk of LPR status termination. So, since we seem to be talking about the right to work, perhaps this myth remains worthy of devotional observance. Not so, counter-intuitive thought it certainly seems. It is not necessary to re-verify a Conditional Permanent Resident I-551 even with an expiration date. Conditional residents should NOT be re-verified when the cards expire.
Myth #8: I-9s can never be destroyed.
Reality: Employers must keep I-9s for all current employees. In the case of a terminated employee ( or where the employee transfers abroad), there is a retention requirement for at least 3 years from date of hire or 1 year from termination, whichever is longer. However, once the purge date has been reached, the I-9 can and should be consigned to the dark side. The Force is no longer with it. Just as an employer should have a tickler system to sound the alarm bells on when to re-verify, warning bells to announce purging time must also sound.
Myth #9: Refugees and Asylees cannot work once their employment authorization documents expire
Reality: Too much zeal is as bad as too little. Refugees and asylees are authorized to work indefinitely incident to status. They may be issued Social Security cards without restriction on employment authorization. For these reasons, the Office of Special Counsel for Immigration-Related Unfair Employment Practices has advised that refugees and asylees need not list any Section 1 expiration dates; leave it blank or just say “N/A” (as indicated in the latest M-274). In fact, discharging a refugee or asylee who has an expired employment authorization document can and likely will result in discrimination charges and an order for back-pay with re-instatement. This is one time where charity makes good legal strategy and sound business sense. The fact that refugees and/or asylees frequently present employers with unexpired Employment Authorization Documents, perhaps to reassure skeptical employers who are used to seeing such evidence to complete an I-9, does not mean that they must do so. What about a Temporary Protected Status employee whose Employment Authorization Document expires? Can they keep working? Yes if USCIS has temporarily extended the validity date of TPS status, most often for 6 months, through notice on the USCIS website and publication in the Federal Register.
Myth #10: Never hire someone who presents an I-9 document with a future expiration date
Reality: Take a Prozac and chill. This is not the law. You must never refuse to hire someone simply because their employment authorization will lapse at some future point. What you should do is to record the correct expiration date in Section 2 and notify the employee before this deadline so that Section 3 re-verification can be done before the I-9 clock strikes midnight. Simply because an employment authorization document will subsequently expire does not mean that it cannot or will not be renewed. Remember: no need to re-verify US passports or permanent alien registration cards, despite each having an expiration date.
Myth #11: The employee must show the same documents for Section 3 re-verification as they did when first hired.
Reality: Nope. The employee gets to choose what I-9 documents to present. Say, they initially offer up an employment authorization document on Form I-766 but now want to slip you a social security card. You are not allowed to insist upon a close encounter with a current DHS document. I know you want to but be strong- fight the urge! Now, to be sure, if the social security card has restrictions on it, then this is not an acceptable I-9 proof and the employee must select something else . Forgettaboutit! as I-9 cognoscenti say in the Big Apple.
Myth #12: If a lawful permanent resident becomes a naturalized US citizen, do a new I-9
Reality: No need Cousin. The work authorization was permanent before and remains A –OK now. If the employer is not a federal contractor subject to FAR E-Verify, then no need to re-verify. However, as the September 2010 FAR E-Verify guidance (Section 2.2.1) indicates, a new I-9 must be done if the employee had a change in his or her immigration status and the employer now is a federal contractor bound hip and foot to E-Verify.
Myth 13: Re-verification can only take place on the most recent I-9 form
Reality: Now this is one that DHS itself seems to believe but the regs tell us otherwise. Look at page 9 of the new M-274 Employer I-9 Handbook that requires completion of a new Form I-9 for re-verification if the I-9 form used for initial verification has been replaced by a new, improved model with all the latest bells and whistles. This contradicts Title 8 of the Code of Federal Regulations ( 8 CFR in legalese) section 274a.2(c)(1)(i) that permits an employer to note re-verification on the prior form if a rehire took place within 3 years. What’s an I-9 acolyte to believe? It is worth noting that , as part of the 1998 proposed rulemaking, the legacy INS proposed a new Form I-9A for re-verification purposes ( Form I-9 remained a re-verification option). The proposed I-9A would be shorter and simpler and have questions relating solely to re-verification. As we all know, it was not adopted.
Now, I know it is hard to shake off commonly accepted wisdom to chart a new course. Taking the less traveled path towards perfect I-9 compliance can be pretty lonely. Perhaps, it would give those about to embark on such a perilous journey the strength to persevere if they but recalled the famous words of Abraham Lincoln’s Annual Message to Congress dated December 1, 1862:
“The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise — with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.”