The Immigration Reforms and Control Act (IRCA) was established to prevent individuals who are not eligible to work in the United States from performing work. It requires employers to complete an I-9 form for each employee within three days of beginning employment. An employee whose work authorization is temporary must indicate the expiration date under Section 1 of the I-9 form, and employers must re-verify the employee’s eligibility to work in the United States on or before that expiration date by completing either Section 3 of the I-9 form or by completing a new I-9 form. If this process is not completed by the expiration date, the employee cannot continue to work and might be put on leave of absence or terminated, per company policy.
Re-verification is strict liability territory. It must be done in advance not after the expiry of work authorization. Hence it’s important to have an I-9 early warning system that provides adequate time to alert you on expiring work authorizations and take the necessary action. Society for Human Resource Management lists out the following steps in order to conduct I-9 re-verification uniformly and consistently
- Create a file or spreadsheet listing all I-9s that need to be re-verified by date and review it monthly.
- Create action dates 90 and 30 days prior to the expiration date to notify/remind the employee that a new document will need to be provided and remind the employee which documents are acceptable. You may wish to include the consequences of not providing new documentation by the expiration date. As needed, notify the employee’s direct supervisor that no work can be performed after the expiration date if documentation is not provided in time.
- Establish a policy for whether employees who fail to re-verify their authorization to work in the United States will be placed on leave of absence to await the new authorization documents or be terminated.
- Set company policy as to whether updating the documentation to reflect a name change for personal reasons will be required.
- Set company policy as to whether rehires will need to complete a new I-9 or if Section 3 will be used.
To complete Section 3, the employer must:
- Examine the documentation to determine if it appears to be genuine and to relate to the employee presenting it. If the employer rejects the documentation, the employer should allow the employee to present other documentation from List A or List C.
- Record the document title, document number and expiration date, if any.
- Sign and date Section 3.
If you previously completed Section 3, or if the version of the form you used for a previous verification is no longer valid, you must complete Section 3 of a new Form I-9 using the most current version and attach it to the previously completed Form I-9
Another question that may arise is the instance where you re-hire an employee. When you rehire a former employee, you may update the ex-employee’s original Form I-9 if the ex-employee is rehired within three years of the original hire date and the form indicates that the individual is still eligible for employment. You then simply can note the date of rehire on the form. If the previously completed Form I-9 shows that the individual’s employment authorization has expired, you must re-verify the individual’s employment eligibility according to the Form I-9 requirements and record the document’s identification number and expiration date on the Form I-9.
Re-verification of I-9s should be done methodically and consistently as they come under the purview of I-9 audit and if records are not properly maintained can find the employer with legal and financial penalties.
EMPTrust can help you with your I-9 and E-Verification process. EMPTrust’s software application allows companies to manage I-9 forms and seamlessly integrate with employment eligibility verification (E-Verify) all at one go.
Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Any issues regarding compliance and obligations under United States or International laws or regulations should be addressed through your legal department or outside counsel.
