New Procedures for Employers Managing I-9 Forms

By Benjamin A. Nucci and Rebecca A. Winterscheidt

U.S. employers generally must properly complete Form I-9 for each individual they hire for employment in the United States to verify the identify and employment authorization of that individual. As part of that process, the employee must present the company with acceptable and unexpired original documents.¹ In turn, the employer must examine those documents to determine whether they reasonably appear to be genuine and relate to the employee and then record the document information in Section 2 of the Form I-9. Importantly, the company’s portion must be completed no later than the third business day the employee starts work for pay.

While the process appears fairly straightforward, coronavirus-associated delays have prevented some employees from complying with their obligations in a timely manner. Specifically, many employees have been unable to present an acceptable document – such as a driver’s license or passport – because their applications for those documents with the respective government entities have been delayed through no fault of their own.

The existing “receipt rule” provided some relief. Under that rule, a receipt showing the employee applied to replace a List A, B, or C document that was lost, stolen or damaged is valid for 90 days from the date of hire (meaning, first day of work for pay) or in the case of reverification, 90 days from the date employment authorization expired. Within 90 days, the employee should then show the company the replacement document for which the receipt was given. Unfortunately, the rule did not take into consideration that presenting this document  is not always possible due to document delays, changes in status, or other facts. Importantly, the rule did not address the scenario where an employee presents acceptable document(s) for Form I-9 verification during a period that is different from the document for which the receipt was issued.

The Department of Homeland Security and Department of Justice recently collaborated to provide the following updated guidance on this issue:

• If the employee does not present the original document for which the previously provided receipt was issued but within the 90-day period presents another acceptable document (or documents) to demonstrate his or her identity and/or employment authorization, employers may now accept the later produced documentation.
• In cases where an employee presents a document (or documents) other than the actual replacement document, the employer should complete a new Section 2 and attach it to the original Form I-9. In addition, the employer should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.

Employers should consider training those staff members responsible for Form I-9 management on the new procedures. It is key to note that not all situations are alike. As the COVID-19 pandemic continues to impact operations, employers should take the time to carefully consider each situation and obtain the most updated guidance before proceeding.