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LawLogix Compliance Corner

Your Tough I-9 and E-Verify Questions and Answers

During the past month, LawLogix has received many excellent questions from our clients and partners relating to I-9 and E-Verify policy and procedure (in response to our “call for questions”). Our in-house compliance team has provided responses to some of these questions below and has forwarded the remainder to our contacts at the government for consideration and response.

Please note that any information provided in this document is for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions concerning how I-9 and E-Verify rules apply to your specific situation, please seek legal advice from a licensed professional attorney who is familiar with all of the facts.

Resolved Questions

  1. When you hire employees remotely, what should your hiring process include to make sure the I-9 is filled out correctly?  We are headquartered in one state, but have about 400 part-time employees who are hired in, and work in, various states around the US.  They are interviewed remotely, sent new hire paperwork electronically, and then return all documents electronically.  I never see them in real life.
  2. Dealing with remote hires is the single-most vexing I-9 problem facing employers today. The biggest challenge is finding someone who can physically examine the documents in-person with the new hire employee and ensuring that the I-9 form is completed correctly. Most employers will use ask the new hire employee to visit an authorized agent to complete section 2 of the I-9 on the employer’s behalf. As it turns out, this is a lot harder than it sounds since it’s often difficult to find someone who can accurately complete an I-9 (or even understand what one is). Using notaries can also be problematic since certain states (such as California & Texas) prohibit notaries from completing I-9s.

    In light of the above, employers are increasingly turning to electronic I-9 systems which enable the company to establish a supervised and reviewable relationship with a designated third-party who can complete section 2 of the I-9 in-person with the new hire employee (wherever he or she may reside).  Here’s how it generally works (recognizing that the exact process may vary based on the employer’s hiring practices):

    • Company initiates new I-9 in the software and designates the employee as being remote. Employee receives a secure link to login to the software and electronically complete (and sign) section 1.
    • After section 1 is completed, employee sees instructions for visiting an authorized representative to complete section 2. There are usually a couple of different options here – for example, LawLogix partners with a nationwide company that has 300+ brick and mortar locations around the country (many in remote locations). Each center has personnel who are trained in completing I-9s and reviewing identity and work authorization documents. Using our software, they can actually schedule an appointment with one of these locations. Or, alternatively, the software can enable the employee to choose his or her own agent to complete section 2.
    • Regardless of who completes the I-9, the software will ensure that all fields are completed correctly (by applying error-checking algorithms), while also enabling the agent to scan/upload a copy of the supporting document (as required by E-Verify or the company’s policy).
    • Throughout the process, the employer can review the status of the I-9 in order to answer any questions which might arise from the agent. Since everything is completed electronically, there is no need to mail or fax any documents.

  3. If you are able to video chat or view original unexpired documents over video, could the documents be acceptable for purposes of completing section 2 of the I-9?
  4. Both the United States Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) have made it very clear that the examination of documents must be an “active” (or tactile) review, which eliminates the possibility of using Skype or other video conferencing technology. Moreover, ICE is acutely aware that some employers have tried these novel workarounds, and there have been a few cases where I-9s completed in this fashion were essentially invalidated.

  5. What other possibilities exist for handling I-9 verifications for remote employees?
  6. Technically any individual can serve as your agent for completing section 2 (it does not have to be notary or a company employee). Here are a few strategies employed by some of our clients:

    • Ask the new hire to ask a friend to complete section 2 (the “buddy system” as we call it).
    • Send the remote employees to local attorneys, accountants, or bank representatives (who are generally used to dealing with government paperwork and following instructions).
    • If there are no state law issues, employers will often look for notaries who specialize in I‑9 completion (these can often be found via web searches in areas where the employee resides or established notary networks)
    • Some companies will enter into mutual I-9 arrangements with their clients or partners whereby you will agree to verify each other’s remote employees. For example, many universities will perform this service for other schools.
    • Create an authorization letter to be provided to the agent (this helps them understand the process and eliminates any concern they may have over potential liability)
    • Provide the agent with VERY clear instructions on what needs to be done, including a sample completed I-9 form. Always make sure to provide a contact number in case the agent has questions for the company.

  7. Why does the proposed new form I-9 include the employee’s citizenship status at the top of page 2? Isn’t it sufficient that the employee has indicated his or her citizenship in section 1?
  8. The proposed new form I-9 has been designed as a “smart form” which includes certain error-checking algorithms to prevent mistakes. Based on our review of the form, it appears that the section 2 document drop-down box will dynamically change based on the citizenship of the employee as indicated at the top of page 2. So for example, if you record a “1,” the List A document drop-down will show U.S. Passport and U.S. Passport Card at the top, followed by the remainder of the List A documents. If you select any of those documents, a warning will appear to let you know that the document is not valid based on the employee’s attestation.

    It’s important to note that this field is only required for employers using a computer to complete the form. Employers filling out the form on paper may leave it blank.

    Lastly, the Guardian solution by LawLogix has had this error-checking feature for many years (the system will automatically check the citizenship status in section 1 and warn the employer if the document recorded in section 2 is inconsistent).

  9. For I-9 purposes, is it sufficient for an L-2 visa holder to submit a foreign passport and Form I‑94? Or is an EAD required?
  10. As it turns out, the government has issued inconsistent guidance relating to completing I-9s for L-2 and E-2 nonimmigrant spouses. The Social Security Administration (SSA) has indicated that
    L-2 spouses are eligible for SSNs without an employment authorization document issued by the USCIS because employment authorization is incidental to their status. This was recently affirmed in several court cases relating to employment authorization. However, in recent liaison meetings, the USCIS asserted that they are still following their 2002 guidance which indicates that an EAD is required. See Guidance on Employment Authorization for E and L Nonimmigrant Spouses and for Determinations on the Requisite Employment Abroad for L Blanket Petitions, issued by Mr. William Yates, former Deputy Executive Associate Commissioner of legacy Immigration and Naturalization Service (“INS”), dated February 22, 2002. Until this discrepancy is resolved, the most conservative course of action would be to require the EAD for an L-2 visa holder.

  11. In relation to employees who are reverifying an EAD, I have read about giving extensions when an employee applies within a certain number of days of the EAD expiration, but in practice, but have never seen such an extension. This has resulted in many terminations in the past. Do these extensions exist? If not, will extensions become a reality and if yes, what will they look like so that it can be documented on the I-9?
  12. To our knowledge, the USCIS has never proscribed a reverification grace period (or “extension”) for individuals who are renewing their EAD (despite the lengthy delays). The I-9 Handbook for Employers (M-274) further warns employers that they cannot accept a receipt indicating that the employee has applied for an extension of the EAD.

    If your employee has a Form I-765, Application for Employment Authorization, pending with USCIS, and the application has been pending for 75 days, the USCIS recommends that the employee call the National Customer Service Center (1 (800) 375-5283) or schedule an INFOPASS appointment at a local office to request expedited processing.

  13. When an employee presents a receipt for a document but then is unable to present the particular document for which they had presented the receipt, must the employer terminate the employee even if the employee has another document from the Lists of Acceptable Documents? The M-274 and other sources are very clear that the employee must present the document for which the receipt was presented, but there is no guidance on what to do if the employee cannot present that document.
  14. This question has been posed to the USCIS in past liaison meetings, and they have yet to issue formal guidance on whether the acceptance of an alternative document would constitute an I-9 violation or call for a termination. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has indicated that employers should not turn away individuals who are work authorized, but they also recognized the limitations in the current regulatory language (which states very clearly that the employee must provide the actual document for which the receipt was issued). The OSC did note that the employer would likely not run afoul of the antidiscrimination provisions of the law if it decided to terminate all such employees who are unable to present a replacement document for a receipt.

    Given the uncertainty of this issue, employers are well advised to work with counsel to develop a consistent policy for addressing instances when an employee cannot present a replacement document.

  15. Should identification documents be updated when they expire and if so, do we attach a new I-9 form to the current?
  16. No, employers should only reverify List A or List C documents when they indicate that the employee’s work authorization will be expiring in the future. For example, an employee may have an I-766 employment authorization document or a foreign passport with an attached I-94. In addition, here are three important rules relating to reverification:

    • US Citizens and noncitizen nationals never need reverification
    • In most cases, lawful permanent residents do not need to be reverified. However, if a lawful permanent resident presents his or her employer with temporary evidence of lawful permanent resident status for Section 2, then reverification may be necessary.
    • Employers should never reverify List B documents (such as a driver’s license) when they expire