Any Questions?
By Jennifer Pawlak
The USCIS has a great resource called I-9 Central (I’ve mentioned it before) with pages of questions and answers. It’s easy to find these answers if you just type your question into your favorite search engine, or even if you use their site search tool. There are some seemingly obscure questions (“Are election judges and poll workers exempt from completing Forms I-9 in accordance with U.S. Department of Justice memo dated Feb 18, 1988 signed by John R. Schroeder?“), but some really important ones, too (“Can I complete Section 1 of Form I-9 for my employee?“). So, let me draw your attention to some of the more noteworthy and interesting Qs and As* from USCIS. They are all important, and you should familiarize yourself with this site, but I think these will be helpful!
P.S. I don’t know if these are questions that came in from constituents or why they’re in the order they’re in (aside from being grouped by section). My selections follow the order in which they appear on the USCIS website as of February 5, 2019.
*The answers provided by USCIS are updated periodically and note the last date the question was reviewed/updated.
Can I include Form I-9 in a job application packet?
Yes. You can include Form I-9 in a job application packet as long as you apply this practice uniformly to all job applicants and do so for information purposes. Do not ask employees to complete Form I-9 as part of the application process. Form I-9 must be completed after your employee has been provided and accepted an offer of employment.
Do I need to fill out Forms I-9 for independent contractors or their employees?
No. For example, if you contract with a construction company to perform renovations on your building, you do not have to complete Forms I-9 for that company’s employees. The construction company is responsible for completing Forms I-9 for its own employees. However, you may not use a contract, subcontract or exchange to obtain the labor or services of an employee knowing that the employee is unauthorized to work.
How far in advance can the Form I-9 be completed?
Form I-9 may be completed as soon as the employer has offered the individual a job and the individual has accepted the offer. Each newly hired employee must complete and sign Section 1 of Form I-9 no later than his or her first day of employment.
As an employer, may I use a signature stamp to sign Section 2?
No. Both the employer’s and the employee’s handwritten (or electronic signature, if applicable) signatures are required to complete Form I-9.
If my employee changes citizenship status after completing Form I-9, are they required to change their attestation?
There is no requirement to update the individual’s attestation. The employee can voluntarily update Section 1 and initial and date the changes or complete Section 1 of a new Form I-9 and attach it to the existing Form I-9.
Can I fill out in advance Section 2 of Form I-9 with my business or organization name, address and position of my company representative?
Yes. You may prefill the “Last Name(Family Name) and First Name (Given Name)”, “Title of Employer or Authorized Representative” and “Employer’s Business or Organization Name”, “Employer’s Business or Organization Address (Street Number and Name), “City or Town”, “State” and “Zip Code” blocks of Section 2 of Form I-9.
Must I reverify an employee who presented for Form I-9 a Permanent Resident Card that expires in two years and contains conditions?
No, you should not reverify this employee. For more information, refer to the M-274 Part 2, Reverification and Evidence of Status for Certain Categories.
Can I avoid reverifying an employee on Form I-9 by not hiring persons whose employment authorization has an expiration date?
No. You cannot refuse to hire persons solely because their employment authorization is temporary. The existence of a future expiration date does not preclude continuous employment authorization for an employee and does not mean that subsequent employment authorization will not be granted. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA.
What should I do if I need to reverify an employee who filled out an earlier version of Form I-9?
If you originally used a version of Form I-9 when verifying the employee that is no longer valid, and you are now reverifying the employment authorization of that employee, the employee must provide any document(s) he or she chooses from either a List A document or a List C document of the employee’s choice from the current Lists of Acceptable Documents. Enter this new document(s) in Section 3 of the current version of Form I-9 and retain it with the previously completed Form I-9. To see if your form is an acceptable version of Form I-9, go to www.uscis.gov/i-9.
My company currently keeps copies of documentation presented by my employees for Form I-9. Can we stop doing this?
Form I-9 regulations allow employers to choose whether to keep copies of documents employees submit to complete their Form I-9. Therefore, you may choose to begin or end the practice of keeping copies of documents at any time, as long as you do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.
Do not shred previously retained copies of documents. DHS regulations state that once you make copies of documents, you must retain them with the Forms I-9 or store them with the employee’s records.
Additionally, if you participate in E-Verify, you must retain a copy of any document any employee presents that triggers photo matching. If an employee presents a U.S. passport card, Permanent Resident Card (Form I-551), or the Employment Authorization Document (Form I-766), you must copy the front and back of these cards. If the employee presents a U.S. passport, you must copy the front page and the back barcode page.
May I review my employees documents via webcam to complete Form I-9?
No. When completing Section 2 of the Form I-9, the employer or authorized representative of the employer must physically examine each original document to determine if it reasonably appears to be genuine and to relate to the employee presenting it. Document examination or review via webcam is not permissible.
May I fire an employee who fails to produce the required documents within three business days of his or her start date?
Yes. You may terminate an employee who fails to produce the required document or documents, or an acceptable receipt for a document, within three business days of the date employment begins.
What is my responsibility concerning the authenticity of document(s) presented to me?
You must examine the document(s), and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them. You may ask if the employee has other documentation that would satisfy Form I-9 requirements.
May I accept an unsigned passport for Form I-9?
Yes. An unsigned passport is acceptable for Form I-9 as long as the document reasonably appears on its face to be genuine and relate to the person presenting the document.
Is a state ID card with no expiration date an acceptable List B document?
A state ID card without an expiration date is an acceptable List B document if it meets the regulatory requirements (must contain a photograph or identifying information) and appears to be genuine and to relate to the person presenting it.
Does a state-issued enhanced driver’s license qualify as a List A document?
No, the enhanced driver’s license is a List B document.
What should I do if an employee presents a Social Security card marked “NOT VALID FOR EMPLOYMENT,” but states that he or she is now authorized to work?
Such Social Security cards are not acceptable document for Form I-9. You should ask the employee to provide another document to establish his or her employment authorization.
What should I do if the wrong version of Form I-9 was completed?
As long as the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time of hire, employers may correct the error by stapling the outdated completed form to a blank current version, and signing the current blank version noting why the current blank version is attached (e.g., wrong edition was used at time of hire). In the alternative, employers may draft an explanation and attach it to the outdated completed Form I-9 explaining that the wrong form was filled out correctly and in good faith.
Where do I mail a completed Form I-9?
Never mail Forms I-9 to USCIS or ICE. Employers must keep completed Forms I-9 on file for each person on their payroll (or otherwise receiving remuneration) who is required to complete the form. Employers must also keep completed Forms I-9 for a certain amount of time after their employees stop working for them.