Form I-9, which is used to verify workers' identity and employment authorization, is one of the trickiest employment forms for employers. Post-pandemic issues add to the burden of physically seeing original documents, making the reverification process even more challenging as droves of employees continue working remotely.
Frank Cania, SHRM-SCP, recently testified before the U.S. House of Representatives' Small Business Committee that "The average error rate on I-9 forms by small-business employers exceeds 75 percent." Penalties for a single mistake on a Form I-9 range from $230 to $2,292. As these fines add up across multiple forms, businesses can quickly find themselves in regulatory hot water.
One of the tricky components of the I-9 is Section 3, which employers can use to "reverify" employees after their employment authorization has expired. But these recertification rules aren't necessarily straightforward. Not only does the U.S. Citizenship and Immigration Services (USCIS) agency of the Department of Homeland Security have specific I-9 Section 3 guidelines, but local ordinances and regulatory requirements in individual states — like California — add additional nuance to the recertification process.
Here's what you need to know about I-9 reverification.
Reverification is the process of reverifying the legal employment authorization of employees who either:
Most U.S. Work Permits, also known as Employment Authorization Documents (EADs), last for one year. However, there is certainly variability in the length of EADs and many last for multiple years. When employees update their EADs (typically accompanied by a List A or List C document), you must fill out and sign Section 3 of the I-9. However, it's essential to note that you must not fill out Section 3 under any other circumstances.
Employers should not reverify:
Important: You should never reverify an employee when their green card status expires. Just like Drivers Licenses, Green Cards have an expiration date, but that expiration date does not indicate an expiration of their ability to work in the United States.
You should also avoid updating Section 3 during any self-audits. In California, Assembly Bill No. 450 prohibits employers from filling out Section 3 unless explicitly required to at a time dictated by federal law. Filling out this section prior to that time can result in a substantial fine ranging from $2,000 to $10,000 per violation.
Are you wondering how to reverify I-9 forms? To complete a Section 3 form, you need the employee to provide either a List A or C document (or acceptable receipt) of their current employment authorization. You must review the document, ensure that it's genuine, and check the expiration date. It's also important to ensure that any Social Security cards (if provided) are not currently restricted.
Important: The U.S. Citizenship and Immigration Services agency suggests you inform employees "at least 90 days before the date reverification is required" that they need to present you with their documents soon.
Once you have the appropriate documentation, you can fill out Section 3 as follows:
As always, there are some caveats:
Here's a tricky situation: what if an employee can't provide updated information? Generally, employees can present receipts for documents and then present those documents within 90 days. So, you don't necessarily need the documents the exact moment you fill out Section 3. However, if an employee doesn't provide said documents after 90 days, you have a problem.
If your employee has already completed a Form I-765 and it's pending with USCIS for over 75 days, have them reach out to the USCIS Contact Center. Things happen. However, if they haven't filled out this application or they can't provide updated information, your hands are relatively tied.
You can legally terminate that employee or put them on leave. This is an area where having an outsourced HR partner comes in handy. There is plenty of nuance in this area. For example, if an employee has an invalid Social Security number, you may have them reach out to the Social Security Administration and fill out Form SS-5. Then, you can file Form W-2C to correct the mistake without getting fined or penalized.
Again, connect with your HR partner to discuss avenues if employees can't provide updated employment authorization information.
The easiest way to track I-9 recertification dates is to partner with a Professional Employer Organization (PEO). Having a trusted HR partner can help you navigate the terrain of I-9 verification. Not only will your PEO help you keep track of these verifications (often via HR tech), but they can also help you fill out I-9s and reverify employees.
Alternatively, you can try to use calendars and spreadsheets, though those are more often prone to errors. Remember, timing is critical on recertification. If you do it too early in states like California, you can face heavy penalties from local regulatory bodies. If you fill it out too late, you can face penalties from federal regulatory agencies.
When you hire employees with employment authorization papers, you may need to reverify them at specific points during their employment. This recertification process is filled with plenty of nuances, even more so in light of the COVID-19 pandemic. We highly recommend that you partner with a PEO and leverage their expertise to help you navigate this legal landscape.
We all know that compliance is tricky for small businesses. Thirty-three percent of small business owners spend over 80 hours a year dealing with federal compliance and many more hours navigating the local regulatory terrain. And one in ten small businesses faces penalties each year — with paperwork like I-9 forms making up a chunk of the regulatory pressure. Don't let your growth get stalled by paperwork and fines. Carefully review I-9 requirements to ensure compliance across USCIS guidelines.
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