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What is a Form I-9 and how do I fill it out, especially for remote employees? | Dorsey & Whitney LLP

As most human resources professionals know, the Immigration Reform and Control Act requires all employers to verify the identity and employment authorization of every person working in the United States who has been hired after November 6, 1986. This verification process is documented by completing and retaining USCIS Form I-9, Employment Eligibility Verification, for each employee hired to work in the United States. The form can be complicated to complete and it is important that employers follow the guidelines published by USCIS, which can be found at: employers-m-274.

The new employee completes section 1 of the form, and the employer inspects the identification documents provided and completes section 2 of the form. The completed form is then retained for company records. Although employees are responsible for completing Section 1, it is the employerresponsibility to ensure that all required fields are correctly completed.

How does an employee complete Section 1 correctly and what common mistakes should I watch out for?

The employee must complete all obligatory fields in section 1:

  1. Name, including other names used;
  2. Address; and
  3. Date of Birth.

The following fields in Section 1 are optional:

  1. Social security number: this field is optional unless the employer participates in the E-verify program. If the employer participates in the E-verify program, the employee must provide their number but does not need to produce the social security cardunless the employee uses the card as a List C document;
  2. E-mail address; and
  3. Phone number.

Section 1 must be completed no later than the date of first job day. Before the employer completes Section 2, they should review Section 1 to ensure that the employee has completed it correctly. If the employer finds errors in Section 1, they should ask the employee to make the necessary corrections and to initial and date the corrections.

Common mistakes employers should be aware of include:

  • Failure to include other names used;
  • Failure to include date of birth; and
  • Require the employee to provide the SSN when the employer is not enrolled in the E-verify program.

How does an employer complete Section 2 correctly?

The employer is responsible for completing Section 2 and must physically inspect the documents presented by the employee. Unless the employer participates in E-verify, it is not necessary to keep photocopies of the documents presented. However, if the employer decides to make copies of the documents, he must do so to everything employees, regardless of national origin or citizenship status, or it may be in violation of anti-discrimination laws.

The employee can choose the documents he will present. The employee must present either:

  1. A document from List A; WHERE
  2. Combination of a selection from list B and a selection from list C.

The Employer’s Handbook linked above has a helpful list of acceptable documents and photographs of each type. If an employee presents a document from List A, do not request or require the employee to present any List B or List C documents. If an employee presents documents from List B and List C, do not ask or require the employee to present a document from List A. This is a common error that can create an inference of “unfair documentary practices”, as explained below.

In some cases, the employee will attempt to present a receipt instead of the ID or work authorization. Although generally receipts are not acceptable, in three (3) limited cases the employer may accept a receipt (and follow up later to review and update the Form I-9 when the actual document is issued) :

  • A receipt indicating that the employee has requested the replacement of a List A, B or C document that has been lost, stolen or damaged.
  • The arrival portion of Form I-94/I-94A (Arrival-Departure) with a temporary stamp of Form I-551 and a photograph of the individual.
  • Departure portion of Form I-94/I-94A with refugee admission stamp or computer-generated printout of Form I-94 with admission code “RE”.

View Receipts | USCIS for more information.

Is there anything different about the I-9 process for remote workers?

As stated earlier, one of the fundamental requirements of the I-9 process is that the employer (or their agent) must physically inspect identification documents provided by the employee to prove that he is authorized to work in the United States.

This physical inspection requirement has always been difficult for employers with remote workers, but it became nearly impossible at the start of the COVID-19 pandemic. Fortunately, Immigration and Customs Enforcement (ICE) – the agency responsible for enforcing the I-9 – has granted some relaxations to this strict physical inspection requirement. Although the relaxed ICE policy was designed to be temporary, it has been extended several times and now expires October 31, 2022. See ICE Announces Extension of I-9 Compliance Flexibility | ICE

The policy allows for the physical inspection requirement to be postponed for 60 days, or up to 3 days after the end of the current national emergency declaration, whichever comes first (which is now October 31, 2022). Under this new inspection deferral policy, employers can stay compliant with the I-9 identity verification rules by following these steps:

  1. No later than the first day of hire (but not before accepting the job offer), the new employee completes and signs Section 1 of Form I-9 and returns the form to the employer.
  2. No later than 3 days after the first day of work of the new employee, the employer must, remotely:
    1. “Inspect” the identification documents provided by the new employee; and
    2. “obtain, inspect and retain” copies of the documents provided; and
    3. Complete and sign Section 2 of the I-9.
  3. Once normal operations resume at the workplace, the new employee must report within 3 working days and present identification documents for inspection. The employer must physically inspect these identification documents and annotate the box in Section 2 “Additional Information” with the reason for the delay, a statement indicating that the identification documents were physically inspected and the date of the inspection. We suggest using the language “COVID-19 delay; documents physically inspected on [DATE].”

Note that although the new guidelines contain separate requirements for the employer to “inspect” and to “obtain, inspect and retain” identification documents (2.a and 2.b above), the precise wording of the order suggests that these requirements could be met in one step: by obtaining scanned copies of documents by email. To be particularly rigorous, an employer could decide both to request copies by e-mail and perform remote virtual inspection of real documents via video call.

An additional requirement is that employers exercising this deferred physical inspection option must provide written documentation of their onboarding and remote telecommuting policy for each employee.

Are there any limits to remote verification?

It is very important to note that ICE only allows this remote verification option for workplaces where there is no employee physically present. If a company has any employees continuing to physically work at a specific job site, the normal I-9 requirement for physical inspections applies. However, companies can separately consider the remoteness of their different work sites.

If a business has employees who continue to work on-site and therefore is not eligible for the deferred physical inspection option, the “normal” I-9 rules apply and the business may designate an authorized representative to complete the physical inspection requirement. This authorized representative can be a business partner of the employer or any third party willing to conduct the inspection in person and complete Section 2 for the employer. The company remains responsible for any violations of the form or violations committed during the verification process.

What are unfair documentary practices?

The Immigration and Nationality Act prohibits discriminatory documentary practices related to verification of employment authorization and employee identity during the employment eligibility verification process. Typically, when completing Form I-9 or when rechecking, employers may not specify which documents (from the full acceptable list) an employee must provide. In addition, the employer cannot request documents different from those presented by the employee (as long as the documents presented appear genuine and comply with the rules regarding acceptable documents). It is important to note that employers cannot reject reasonably authentic documents. There are four broad categories of unfair document practices, with the most common listed first:

  1. Asking a person to produce more or different documents than those required by Form I-9 to establish their identity and employment authorization;
  2. Require individuals to present a particular document, such as a “green card”, to establish their identity and/or employment authorization;
  3. Reject documents that reasonably appear to be authentic and relate to the persons presenting them; and
  4. Treating groups of individuals differently when verifying employment eligibility, such as requiring certain groups of individuals who look or appear to be “strangers” to present particular documents that the employer does not require other individuals present.

The best way to avoid these problems is to allow the employee to choose which documents to use. If the employee “over-compliant” by providing more documents than necessary, explain to them what they need and let them choose which documents to use. Do not choose for the employee.

What if we find errors? Can we correct the form?

Generally, yes. USCIS and ICE encourage employers to perform internal audits of their Form I-9s and correct errors when they are discovered. This will avoid penalties if the employer is subject to an ICE audit.

Below are the do’s and don’ts of correcting I-9s:

  • Do not conceal amendments or backdated forms.
    • Enter the missing information, the date and initial.
    • Use a different colored pen or font if you are online for any edits or additions.
    • If information needs to be deleted or corrected, strike it out in one line, date it, and initial it.
  • Do NOT use blank or other redaction.
  • Attach a written explanation for any additions or revisions.
  • Leave an audit trail (showing that you discovered and corrected errors).
  • Employees should make any necessary revisions to Section 1.
  • Employers should make necessary revisions to Sections 2 and 3.
  • If necessary, a new I-9 can be filled out for a specific person (if there are a lot of errors). In this case, the old form should be stapled to the new form and a note explaining why a new form was completed should be attached.

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