Form I-9 Reverification Best Practices

 

One of the biggest mistakes in the HR world is thinking that the I-9 is always just a “one and done” type of form that can be safely stored (and forgotten) once your new hire has been brought onboard. The reality is much more nuanced since employers must reverify certain employees who have temporary work authorization in the U.S., while at the same time adhering to the anti-discrimination protections afforded to all work-authorized individuals. 

Reverification has been on the minds of a lot of HR managers these days, especially in organizations that hire a large percentage of foreign workers remotely across the country. HR practitioners have long found that the rules relating to reverification can be confusing (and convoluted), and the potential fines for non-compliance can be significant.

Just how bad can it get? Consider the following: 

• Failure to properly reverify an I-9 form can possibly lead to a “knowing hire” violation if it turns out that the individual lacks work authorization. That’s because under the law, employers are presumed to have “constructive knowledge” if they fail to complete or properly reverify an employee’s I-9 when required. Fines for knowing hire violations (for a first-time offense) currently range from $627-$5,016 for each unauthorized individual.
   

• If it turns out the employee is authorized to work, the employer may still incur an I-9 “paperwork” violation for failure to properly reverify an I-9 in Section 3 when required. Fines for paperwork violations currently range from $252-$2,507 for each I-9 with a violation.
   

• And what happens if an employer does the opposite and improperly reverifies an employee when reverification was not required or allowed under the law? The Immigrant and Employee Rights (IER) section of the Department of Justice can assess a civil penalty of $207-$2,072 for each individual where the employer has committed an unfair documentary practice, along with ongoing monitoring and training obligations.   

Fortunately, employers can proactively address and help prevent these types of mistakes by establishing a well-designed reverification process that scales across the organization, regardless of how many foreign workers are employed and regardless of whether they work remotely. Below are three best practices to consider: 

1. Understand the I-9 Reverification Requirements

In a nutshell, employers must reverify I-9s where the employee has provided an employment authorization expiration date in Section 1 or has provided a document in Section 2 which indicates that the worker has temporary work authorization (such as an EAD, Form I-94, etc.). When reverification is required, an employer must perform the necessary steps no later than the date the employment authorization expires.  

Employers must also understand when NOT to reverify I-9s under the law. Reverification is not required for U.S. citizens or noncitizen nationals. Reverification is also not required when the following documents expire: U.S. passports, U.S. passport cards, Form I-551 (Alien Registration Receipt Cards/Permanent Resident Cards, which are also known as Green Cards), and List B documents. 

Once you’ve determined that reverification applies, you’ll need to request that the employee present a document (or documents) that show current work authorization, such as any document from List A or List C of the Lists of Acceptable Documents (“LOAD”). Keep in mind though that the LOAD does NOT contain every possible document combination, so you’ll want to carefully review the M-274 Handbook for Employers as needed for some of the more complicated foreign worker requirements. 

And finally, once you have reviewed the employee’s updated document(s), you’ll need to enter the information in Section 3 of the employee’s I-9 and sign where indicated. If you already used Section 3 for a previous reverification or update, you can use Section 3 of a new Form I-9. You must also complete Section 3 on a new Form I-9 if the form you used for the previous verification is no longer valid (which happens when the government releases a new version of the form).

2. Plan for I-9 Reverifications with a Standard Operating Procedure (SOP)

If you haven’t yet set up a reverification tracking plan at your organization, do not fret! For HR personnel have a not-so-secret weapon for bringing order to complex and convoluted legal frameworks through the ever-popular Standard Operating Procedure document (or SOP for short). When drafted well, SOPs provide structure, control, and consistency to a process while also helping you ensure your legal and regulatory requirements are addressed.

Here are some general pointers to consider for your I-9 reverification SOP:

• Make sure you clearly define who should be subject to reverification (following the rules outlined above)
   

• Implement a reminder system of upcoming expirations which are occurring 90 to 180 days in the future so that you can properly inform your employees and give them time to provide you with updated documentation
   

• Decide who at your organization will be responsible for performing the reverification in-person with the employee and reviewing the original documents (including the use of authorized representatives for remote employees)
   

• Work closely with your legal counsel to help ensure that your reverification activities comply with the anti-discrimination provisions of the law, which (among other things) prohibit unfair documentary practices during the I-9 and E-Verify processes  

3. Use a Form I-9 Technology Solution

A well-designed electronic I-9 management system can help you address some of the biggest pain points in the reverification process through a combination of advanced alerting mechanisms, standardized processes, and intelligent error-checking. For example, Equifax offers comprehensive I-9 software solutions that help guide employers through the various steps in the reverification process with a structured reverification workflow, email notifications of expiring work authorization, and robust reporting options to help you ensure that no one falls through the cracks.  

If you are looking for assistance with managing I-9s for your organization, take a look at our I-9 Management suite of services, or learn more by downloading our HR Checklist for I-9 Enforcement. 
 

 

The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.