When Should Employers Complete a New Form I-9 for Existing Employees?

[Editor’s Note: Today’s article is courtesy of Josie Gonzalez, Partner and Amanda Paquet, Attorney at Stone Grzegorek & Gonzalez LLP.]

In recently released minutes from a meeting of the USCIS Verification Division,[1] USCIS discussed various situations in which a new Form I-9, and corresponding E-Verify entry, can be made for current employees.  USCIS recommends that current employees complete a new Form I-9 when they present documentation of a new identity or work authorization that calls into question the reliability and accuracy of the prior I-9.

At first glance, this is somewhat mind-boggling given the general rules that Forms I-9 must be completed and E-Verify queries must be submitted within three business days of the employee’s first day of work for pay and the corresponding general prohibition against “I-9ing” (outside of mergers and acquisitions) or running E-Verify queries (outside of FAR)[2] on current employees.[3]  However, the USCIS response to questions about this issue really makes a lot of sense.

Consider the following scenarios:  A current employee presents to Human Resources a new and different social security card that bears a different name than current records.  The employer asks counsel – how do I know it’s valid? Must I accept it as being genuine-looking and not question its authenticity?  Can I run the new documentation through E-Verify even though the employee isn’t a new hire?  Should I fire and rehire and then run the information through E-Verify?  Or, what about your 22 year-old employee who states that she received a work permit under the “DACA program”[4] based on her years of U.S. residency since an early age and now wants to change her records to reflect a new work permit and a new social security card?

The Immigration Reform and Control Act of 1986 (“IRCA’) requires that employers not knowingly continue to employ an individual who is not authorized to work in the United States.  Presumably, in the above scenarios, the employee had presented facially satisfactory documents when hired and is now coming forward with new identity and work authorization.  Having provided false documentation initially, can an employer trust the validity of new documentation? How can an employer avoid an inference of having acquired “constructive knowledge” of unlawful employment if ICE finds that the employer failed to act reasonably by accepting the second documentation without probing deeper?

USCIS is suggesting an “I-9 protocol” for filling out a new I-9 while also retaining the older I-9.  Additionally, if the employer is enrolled in E-Verify, it recommends initiating an E-Verify case based on the new identity and I-9 information, even if the employer enrolled in E-Verify after the original hire date.

USCIS explains in great detail:

If the identity information relied on for a previous Form I-9 and/or E-Verify verification has materially changed without reasonable explanation such as a documented legal change of name, then the previous verification should no longer be considered valid.This situation is equivalent to a new employee who has not been verified.

However, as USCIS explains, not all changes are material.

A name that remains unchanged except for the dropping of a matronym or patronym would likely not call for the completion of a new Form I-9, but a change in the employee’s SSN probably would.

USCIS lists three situations (aside from FAR requirements) where employers can run E-Verify queries on current employees:

• When the employer did not properly complete the Form I-9 and/or E-Verify at the time of hire and later discovers the error, the employer is expected to bring itself into compliance as soon as possible.
• When the identity information used to complete the Form I-9 and to verify work authorization has materially changed, a new I-9 is required. USCIS elaborates:

If there is a change in the individual’s name, date of birth, or SSA number, the E-Verify statute requires that E-Verify determine that the individual is authorized to work in the United States.

USCIS elucidates that this is “analogous to a situation in which the employer discovers a previous material error or omission” and the “previous verification may no longer reasonably be relied upon and should be re-run with the new identity information”; and

• If new I-9s are completed in Professional Employer Organizations (“PEOs”) and corporate acquisition or merger situations, employers participating in E-Verify should initiate E-Verify cases.

All of these examples are tied to new Form I-9 completion for current employees. If a new Form I-9 is completed, one should also initiate an E-Verify case.  How will an employer explain the delay in initiating the E-verify case?  USCIS suggests that the employer indicate in the E-Verify system that the delay is the result of the employee completing a new Form I-9.

We applaud USCIS for getting it right this time.  This new guidance is helpful to employers.  In fact, rather than simply terminating an employee, who presents new documentation, for violating the company’s “honesty policy,” we believe that, presented with a method to authenticate the veracity of the new documentation, employers are more apt to retain the employee.