Employers have an obligation to verify that their employees are authorized to work in the United States. This verification process is done through the use of Form I-9.
But what happens when an employee forgets to bring in the documents confirming they are legally permitted to work in the U.S.? Even though you may have mailed him the list of acceptable documents to present for I-9 purposes, he forgot to bring them.
The employee is required to complete Section I of Form I-9 on his first day of work. The company is required to complete Section II no later than 3 business days from his first date of employment. (Exception: If the company employs the individual for less than three days, Section II must be completed on the first day of employment.)
The employer should go ahead and ask the employee to complete Section 1 and make it clear that the company cannot continue to employ him if he can’t show them work authorization documents by the third day of employment.
There are a variety of reasons that an employee may not have his documents. For example, his original documents may be with a parent, who lives two-hours away. In this circumstance, the employee should ask his relative to send those documents via next day delivery or deliver his original documents to him so that he can present them to the company by the third day of employment.
An employee may have lost documents that could verify his eligibility to work in the U.S. In limited circumstances, an employer may be permitted to accept a receipt for a replacement document and then the employee would have to produce the original within 90 days of employment. Those exceptions can be reviewed in a comprehensive Handbook for Employers available from the U.S. Citizenship & Immigration Services (USCIS).
Another area that employers need to monitor is the expiration of work authorization documents. For example, you may have an individual who presented an Employment Authorization Document (EAD) that expires February 3, 2017. In that circumstance, you would need to reverify this individual’s continued authorization to work in the United States prior to that expiration date. He would have to show you a new EAD or some other document that demonstrates that he is authorized to work. It is recommended that employers remind employees about the need to provide updated work authorization information approximately 90 days before their current document expires. It’s important to note here that the employer is not permitted to tell an individual which documents to present for verification or reverification purposes. The employer should give the employee the list of acceptable documents and allow the individual to select what he or she wants to present. The employer would then complete Section 3 of the Form I-9 to update the employment authorization verification. NOTE: Employers may not reverify List B documents, an expired U.S. passport/passport card, or an Alien Registration Receipt Card/Permanent Resident Card (Form I-551).
Employers are not required to maintain copies of the documents presented to show work authorization. Immigration attorneys like to see this information – especially if the company utilizes their services to obtain specific visas or work authorization documents for their employees. However, employment law attorneys aren’t necessarily in favor of this practice. There have been incidents where an employer has kept copies of these documents and, when audited, the auditor determined that the employer should have recognized that those documents were not valid or legitimate. Employers are encouraged to discuss the pros and cons of making copies with their employment law attorneys.
If an employer has employees in remote locations, they are reminded that the person completing Section 2 of Form I-9 must look at original documents when completing this paperwork. It is not an acceptable practice to complete Section 2 using faxed or emailed copies of the documents nor is it an acceptable practice to use Facetime or Skype in order to view these work authorizations. Depending on the circumstances, the employer may need to retain the services of a third party to complete Section 2 on their behalf when it is not feasible for a company representative to view these documents “live”.
The USCIS offers webinars on a regular basis to teach employers how to properly complete the I-9 form at http://www.uscis.gov/e-verify/e-verify-webinars/take-free-webinar. Employers interested in learning more about E-verify, an electronic process that confirms the employment authorization of the individual who has completed Form I-9, is also available on the USCIS website.
Contributed by Christine Crews, SPHR, SHRM-SCP is Vice President of Human Resource Services for the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development. HCCMO members receive discounted rates on all EAF classroom training at EAF’s training center in Longwood. Click here to learn more about EAF membership benefits http://eafinc.org/about-eaf/value-of-membership/.