SHRM Webcast Questions

 

On February 19, 2009, Attorney John Wilson hosted a webinar for the Society for Human Resource Management (SHRM), “You Can’t Afford to Wait: Filling out the I-9,” and discussed the upcoming changes to the I-9 form and the E-Verify requirement. Our firm received hundreds of questions and we are in the process of individually responding to each question.  We received several excellent, reoccurring questions.  We believe that everyone can benefit from reviewing all of the questions and our responses.  For this reason, we are posting several of the frequently asked questions below for bLAWg readers to read. We will post these, and other questions, on this SHRM Webcast Questions page. Bookmark it, and check back soon for more questions.

1.       Q. Are current employees who were hired prior to November 6, required to have I-9 form on file? 

A: No. Employees who were hired before November 6, 1986 and have been continuously employed do not need Form I-9 on file.

2.       Q: Are all current employees hired after 11/6/86 required to have an I-9 form on file?

A: Yes.

3.       Q: Are unpaid interns, contractors and employees on unpaid long term leave required to complete the I-9 form?

A: Unpaid interns and contractors are not required to complete an I-9 form. If an employee goes on an extended leave but remains on the payroll, he or she does not have to complete a new I-9 form upon returning to work. However if the employment is terminated and the employee is re-hired at a later time, a new I-9 form must be completed.

 

4.       Q: We have all our new hires complete their Form I-9 on the first date of employment. Is this proper procedure?

A: Yes, as long as the period of employment is supposed to last more than 3 days. If the employment is supposed to last three days or less, the I-9 form must be completed before employment begins.

 

5.       Q: Our company makes job offers in January and February of each year, but the new hires start work in the summer. Typically, we post all new hire information and paperwork (including Form I-9) on an intranet site in mid-March for those starting in the summer to review and then complete ahead of time. Can we post the updated (February 2, 2009) form in mid-March or should we post the current form and then change it on April 3rd?

A: While the I-9 form can be completed ahead of time we would not recommend completing it more than 3 months in advance to ensure that all information is accurate and the correct version of the form is used. In this specific situation it would be advisable to wait until April 3rd to post the I-9 form.

 

6.       Q:  An employee presents unexpired documents at the time of hire but the documents expire during their employment. Do we need to ask the employee to provide us with a new copy of the unexpired document? 

A: As long as there is no break in employment you do not need to re-verify any List B document, Permanent Resident Card or U.S. Passport. This rule will not change after April 3, 2009.  However employers must re-verify an Employment Authorization Card, a visa or any other document that establishes employment eligibility and has an expiration date.  Additionally, after April 3, 2009 all documents must be unexpired at the time the I-9 form is completed.

 

7.       Q: Is a Social Security Card that states “Valid for work only with INS authorization” an acceptable List C document? 

A: No. If an employee presents a Social Security Card that says “valid for work only with INS authorization” you have to request additional proof of employment authorization.

 

8.       Q: While the M-274 Employer Handbook indicates that passports are issued by the U.S. Department of State, some passports list a specific passport agency as the issuing authority (for example – Chicago Passport Agency).  When the specific agency is listed on the passport should we identify the issuing authority as that agency only or should we include both U.S. Department of State and the Passport Agency? 

A: Please record the agency as shown in the Passport, as this is more specific.

 

9.       Q:  Some Social Security Cards have “Department Health and Human Services” written on the front of the card. Should this agency be listed as the issuing authority for Social Security Cards? 

A: No. Although many Social Security Cards say ”Department of Health and Human Services” on the front, the correct issuing agency for all Social Security Cards is the Social Security Administration.

 

10.   Q: Some permanent resident cards have “U.S. Department of Justice, Immigration and Naturalization Service” as the issuing authority, while others say “U.S. Department of Homeland Security”.  What is the correct issuing authority for permanent resident cards? 

A: It depends on the edition of the card. Both Department of Justice/INS and Department of Homeland Security (DHS) are correct issuing authorities. When DHS was created in 2003, it assumed the functions of the INS and the INS was dissolved. Therefore the newest version of permanent resident card (issued in 2004) shows DHS as the issuing authority.

 

11.   Q: If we establish a company policy to keep copies of the documents presented for I-9 purposes, does this policy need to be retroactive? 

A: No. You can start making copies of I-9 documents for all new hires as of the day the policy becomes effective. However once you have established such policy you have to ensure that you retain copies of any document used to complete the I-9 form for all new hires regardless of nationality or citizenship status.

 

12.   Q:  More documents than needed to satisfy I-9 requirements were accepted and recorded at the time of hire.  Can this be corrected?

A: No. This error cannot be corrected retroactively.

 

13.   Q: Where does the Form I-9 indicate that the employee is not required to provide the Social Security number in Section 1?

A: It is indicated in the I-9 Form instructions (starting with the June 5, 2007 version) and the M-274 Handbook for Employers (Page 4). 

 

14.   Q: Some of our employees presented expired Passports at the time they completed the I-9 forms. Do I need to ask them to present new documents and update their I-9 forms?

A: No. U.S. Passports do not have to be re-verified. You can accept expired U.S.  Passports up to and including April 2, 2009 after which date all documents must be valid at the time the I-9 form is completed. However, even after April 2, 2009 you do not have to re-verify U.S. passports and permanent resident cards if they expire while the employee is working for your company.

 

15.   Q: Do we have to keep the list of acceptable documents with the completed I-9 form?

A: No, it is not required to keep the list. However you have to provide the list of acceptable documents and the I-9 form instructions to each new hire at the time they are completing the form.

 

16.   Q: Does the I-9 form have to be renewed every three years during the period of employment?

A: No. The I-9 form must be completed at the time of hire and kept throughout the duration of the person’s employment. After the employee is separated from the company the I-9 form must be kept for additional period of time, according to the retention worksheet.

 

17.   Q: Do we have to make copies of the documents recorded on the I-9 form or is it enough to verify the documents are valid?

A: You are not required by law to keep the copies of the documents. We generally advise clients to make copies of the recorded documents and keep them attached to the I-9 form as copies can mitigate some transcription errors and aid with a good faith defense in a case of an audit by a government agency.

 

18.   Q: If there is no I-9 form on file for a current employee, can we complete the form at this time?

A: Yes. You should complete I-9 forms for all current employees that are missing them. However, do not backdate the form. You must use the current (6/5/07) version until April 3, 2009 when the updated (2/2/09) version must be used. In addition, attach a note explaining the discrepancy between the hire date and I-9 completion date. 

 

19.   Q: If an employee changes his/her name after marriage, do I have to update their I-9 form? If so, what is the proper way to do it?

A: You are not required to record an employee’s name change on the I-9. If you wish to do so, you can use the Section 3 of their original I-9 form by writing in the new name and signing and dating the form. The employee does not have to sign the form.

 

20.   Q: Does the employee have to provide their Social Security number in Section 1 of the I-9 form?

A: No, providing the Social Security number is optional. However, if your company uses E-Verify, the employee must write their Social Security number in Section 1.

 

21.   Q: How long are we required to keep I-9 forms?

A: You should keep an I-9 form on file for all current employees hired after November 6, 1986. You should never destroy a current employee’s I-9 form. After the employee is terminated, the I-9 form must be kept for 3 years from the hire date or 1 year from the termination date, whichever is later. For example: hire date April 2, 2007 + 3 years = April 2, 2010, termination date January 15, 2009 + 1 year = January 15, 2010. The I-9 form must be kept until April 2, 2010 as this is the later of the two dates. GoffWilson offers a free & handy I-9 Retention Worksheet to easily calculate these dates.

 

22.   Q: Is it correct that you need a completed I-9 form to use E-Verify?

A: Yes. Completing an I-9 form before the employee’s information is entered into E-Verify is required under the terms of the Memorandum of Understanding. The E-Verify system will require you to input the information from the Section 1 and Section 2 of the completed I-9 form. 

 

23.   Q: Our company is a subcontractor, providing supplies to companies who may have government contracts. Are we required to use E-Verify?

A: Only employers who have government contracts with an E-Verify requirement clause are required to use E-Verify. Please note that starting June 30, 2009 this clause will be inserted into qualifying government contracts.

 

24.   Q: Our company will be awarded a Federal contract within the next few months. Will these contracts automatically include the E-Verify clause?

A: Only contracts awarded after June 30, 2009 may contain the E-Verify requirement clause. Additionally there are many exceptions to the types of contracts that will have the E-Verify clause.

 

25.   Q: Please clarify the E-Verify timeline for federal contractors.

 A: From the E-Verify Memorandum of Understanding:

An employer that is not enrolled in E-verify as a Federal contractor at the time of a contact award must enroll as a Federal contractor in the E-verify Program within 30 calendar days of contract award and, within 90 days of enrollment, begin to use E-Verify to initiate verification of employment eligibility of new hires of the employer who are working in the United States, whether or not assigned to the contract.  Once the employer begins verifying new hires, such verification of new hires must be initiated within 3 business days after the date of hire.  Once enrolled in E-Verify as a federal contractor, the Employer must initiate verification of employees assigned to the contract within 90 calendar days after the date of enrollment or within 30 days of an employee’s assignment to the contract, whichever date is later.

 

 

These requirements are separate and distinct from the I-9 completion requirements.  The I-9 must be completed by the employee on the first day of hire, and by the employer by the end of the third day.  If an employee is being hired for a period of three days or less, then the entire I-9 form must be completed before work begins on the first day.

 

26.   Q: Does the Department of Labor have the right to inspect the I-9 forms?

A: Yes. There are three government agencies that have the right to audit your I-9 forms: the Department of Labor, Immigration and Customs Enforcement (ICE) and the Office of Special Counsel for Immigration Related Unfair Employment Practices.

 

27.   Q: Where can I get the most recent copy of the Handbook for Employers (M-274)?

A: You can find a link to the Handbook for Employers on our bLAWg Blogroll.

 

28.   Q: Where can I access the new I-9 form?

A: You can always find a link to the current version of the I-9 Form on our bLAWg Blogroll.

 

29.   Q.  I noticed on the 2/2/09 I-9 Form, as well as the 6/5/07, I-9 Form it says, “Expires 6/30/09,” at the top. What does this mean? Can we still use the Form after these dates?

A.  6/30/09 is the date the form expires.  Typically, we expect the USCIS to extend the date of validity of the form.  We anticipate the form will be updated prior to the expiration date.  However, in the past, U.S. Citizenship & Immigration Services has not updated the expiration date, leading to some confusion.  The version of the form you should be using can always be found on the USCIS website and our bLAWg under the Blogroll.

 

30.   Q.  Can I use abbreviations on the form?  Is there any part of the form I can fill out in advance?

A.  We believe it is best practice to record information on the I-9 as completely as possible.  Please write out full titles, for example, “Driver’s License,” “Social Security Card,” etc. State names may be abbreviated using their correct 2-letter abbreviation.  The word, “Department,” may be abbreviated “Dept.,” and United States may be abbreviated, “U.S.” The employer completing the form may also abbreviate their title, if it is quite obvious. The employer information in Section 2 can be completed in advance.  We have worked with companies who use an address stamp for this.  The signature and date of Section 2 must be entered by hand.

 

31.   Q.  What if an individual doesn’t have a middle initial or an apartment number?  Is it okay to leave those sections blank?

A.  Since some people do not have middle initials or apartment numbers, it is okay to leave these spaces blank.  It is the employer’s responsibility to ensure that Section 1 is completed.  Employers are also not required to fill in the maiden name in Section 1 and Social Security Number is only required if the employer has enrolled in E-Verify. 

 

32.   Q.  What if we re-verified an employee’s work authorization after it expired?  Should I attach a memo to the I-9 documenting this?

A.  This is a substantive error and cannot be fixed.  Attach documentation to the I-9 Form stating that the error has been recognized, and appropriate measures have been taken to ensure that employees are now re-verified in a timely manner.

 

33.   Q.  If the I-9 Form is not completed in a timely manner, should I attach a memo explaining that we have noted the error?

A.  This is a substantive error and cannot be fixed.  Attach documentation to the I-9 stating that the error has been recognized, and appropriate measures have been taken to ensure that employees I-9 Forms are now completed in a timely manner. 

 

34.   Q.  Is it true that only companies with government contracts are required to participate in E-Verify?

A.  Any employer can voluntarily enroll in E-Verify.  Some companies have been required to sign up as a consequence of breaking immigration laws, or because state law requires it.  However, for most employers, enrollment is voluntary.   As of June 30, 2009, the Federal Government will start inserting language into contracts requiring the use of E-Verify.  If an employer has a qualifying Federal Contract that contains this language they will be required to enroll in E-Verify.  Please note that enrolling in E-verify does not protect a company from worksite enforcement actions.

 

35.   Q.  I work for a Nursing Home; do we need to E-Verify?

A.  Your company does not need enroll in E-Verify until it is specifically awarded a contract that requires you to do so.  If you are already enrolled, you must run every new employee through E-Verify.  Enrollment can be cancelled.  If your company has qualifying a Federal Contract it will be necessary to enroll in E-Verify once the E-Verify clause has been added to your contract(s).  

 

36.   Q.  My company is a Federal Contractor.  Our existing employees have Secret or Top Secret clearance.  If and when the E-Verify clause gets added to our Federal Contracts, do I have to run these people through the system?  If we hire new employees with secret or top secret clearance will I have to run them through E-Verify?

A.  Employees, “who have been granted and hold an active U.S. Government security clearance for access to confidential, secret, or top secret information in accordance with the National Industrial Security Program Operating Manual do not need to be verified.” (See the E-Verify website.) 

 

37.   Q.  We have employees in 5 different states and have offices in 3 different states.  I currently run all new employees through E-Verify; should I continue to do this?

A.  Employers can choose which business sites to enroll in the E-Verify, however, once a site has signed the Memorandum of Understanding all new hires at that site must be E-Verified.  The Notice for Illinois Employers can be found here.

 

38.   Q.  We are a government contractor but we also sub-contract.  Are we responsible for our subcontractor’s I-9 compliance?  Do they need to E-Verify as well?

 A.  You are not responsible for your subcontractor’s I-9 compliance.  However, you may be liable if you know or have reason to know that the subcontractors are employing undocumented workers.  You must have more than mere suspicion though.  The subcontractors’ relationships with your company may require them to use E-Verify if they qualify as a subcontractor.  The subcontractors are only required to use E-Verify if you (the federal contractor) contract directly with the government and have a qualifying federal contract, which contains the E-Verify clause.

 

39.   Q.  You mentioned [during the SHRM Webcast] that there are 2 types of I-9 errors, substantive, which cannot be corrected, and procedural, which can be corrected.   Can you please explain the difference between the two?

A.  There are two types of I-9 errors: technical/procedural errors and substantive errors.  Technical/procedural errors can be corrected.  An example of a Technical/Procedural error is forgetting to record a document title.  If a copy of the supporting documentation has been kept, this is correctable without contacting the employee.  The fines for these errors are more discretionary.  A substantive error cannot be corrected, and if audited, your company will likely face a fine for these errors if the statute of limitations has not run.  An example of a substantive error is not signing Section 2.  If audited, your company will be fined for this.

 

40.   Q.  One of my employees presented a Certificate of Naturalization without an expiration date.  Will this still be valid in April?

A.  First, it is not necessary to review I-9 forms for document expiration unless the employee’s employment authorization expires with the documents.  The only time you need to get new or updated documents is when work authorization expires or when a receipt was presented by the employee when the I-9 was originally completed.  An I-9 is valid if an individual presented appropriate documents when they completed their I-9, and if their work authorization does not expire.  Currently, you are required to accept expired List B documents and U.S. Passports for I-9 purposes.  On April 3^rd, 2009, all documents must be valid on the day the I-9 is completed.

 

Second, when the I-9 form was changed on December 26, 2007 the USCIS removed the Certificate of Naturalization from the Lists of Acceptable Documents.  The Certificate of Naturalization is not a valid document for I-9 purposes.  If this individual was hired after December 26, 2007, then you have accepted an unacceptable document.  Please review the Lists of Acceptable Documents before completing any I-9s.  If this individual was hired before 2007 then the Certificate was an acceptable document, and nothing more needs to be done.

 

41.   Q.  We are a staffing firm with subcontracts to a contractor to the Federal government.  How do we know when the E-Verify clause for Federal Contractors goes into effect? 

A.  If you are a qualifying subcontractor (and there are many exceptions) then the company who has the contract will be required to notify you that you will be required to enroll in E-Verify.  You will have 30 days to enroll and 90 days to reverify your current employees assigned to work on the contract.  During that 90 days you may elect to E-Verify your entire workforce, but it is not required.

 

42.   Q.  How long do I have to keep I-9s?

A.  Every current employee hired after November 6, 1986 must have an I-9 on file throughout their employment.  Only once an employee has separated from the company should you calculate a retention date for that I-9.  On the day the employee separates, calculate one year from that date and write it on the I-9.  Next, add three years to the employee’s start date and write that date on the top of the I-9.  Circle the later of the two dates.  This is your retention date. 

 

GoffWilson has developed an I-9 Retention Worksheet to assist employers calculate retention dates for I-9 Forms. Feel to print and share this worksheet.

 

43.   Q.  When I rehire an employee they complete a new I-9.  Should I E-verify them again too?

A.  No.  The E-verify system does not allow you to run an employee twice, even for rehires and reverification.  This may change at a later date.

 

44.   Q.  We are a subcontractor who provides office supplies and furniture to companies who may have government contracts.  Are we required to utilize E-Verify?

A.  Under the current rule, you are not required to use E-Verify; this may change in the future.

 

45.   Q.  Where can I get information about E-Verify?  I am looking for information on the online training, testing, and the 12-page Memorandum of Understanding.

A.  Visit the following links to find information on the E-Verify program and The Memorandum of Understanding

 

46.   Q.  Is it true that companies cannot require new hires to input their Social Security Number on the I-9 form unless they are using E-Verify?  If an employee does not include a Social Security Number and it turns out that they are not legally authorized to work in the United States, is the employer liable?

A.  An employee is not required to include their Social Security Number in Section 1 of the I-9 form unless the employer uses E-Verify.  Since this is not required, the employer is not liable if the employee turns out to be unauthorized for this reason.  However, if the employer has any actual or constructive knowledge that the employee is unauthorized they are not protected from liability. 

 

 

Please contact our firm if you have any further compliance questions, or if you feel that your company has violated any I-9 Form or E-Verify regulations.