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I-9 E-Verify Immigration Compliance

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  1. When does an Employer Need to Re-Verify?

    By: Bruce Buchanan, Sebelist Buchanan Law



    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379),
    Greg Siskind and I discuss reverification. Here is an excerpt from the book.

    3.1 What are the Form I-9 re-verification requirements?

    If an employee is not a U.S. citizen, lawful permanent resident, or noncitizen national, he or she is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their documents on the Form I-9 and then must pull the employee’s Form I-9 before the expiration date and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.

    3.2 What if the re-verification section of the form has been completed from a prior re-verification?

    In this case, an employer can complete and sign Section 3 of a new Form I-9. The employer should put the employee’s name in Section 1 and retain the new form with the original.

    3.3 Can an employee present a Social Security card to show employment authorization at re-verification when he or she had presented an expiring Employment Authorization Document or Form I-94 at the time of hire?

    Yes, an employee may present a Social Security card to show employment authorization at re-verification as long as the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS [U.S. Department of Homeland Security] authorization” or “valid for work only with INS [Immigration and Naturalization Service] authorization.” If the Social Security card has this language, it is not a valid List C document. This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid. Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. An employee may have become a lawful permanent resident or otherwise received employment-authorized status allowing the employee to obtain a Social Security card, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized.

    3.4 What if a new Form I-9 comes out between the date the initial Form I-9 is completed and the time of re-verification?

    If a new Form I-9 has been released between the date of hire and the date of re-verification, the employer should complete Section 3 of the new version of the Form I-9 and accept only documentation of employment eligibility from the Lists of Acceptable Documents in the Form I-9 instructions. However, the U.S. Department of Homeland Security (DHS) will accept use of Section 3 on the existing completed Form I-9 if it has not been previously completed for prior re-verification.

    3.5 Do past employees resuming work with a company need to complete a new Form I-9?

    Returning employees often do not need to complete a new Form I-9, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the Form I-9, if the formerly listed work authorization has expired. If a new version of the Form I-9 has come out since the last time the Form I-9 was completed, the employer may complete a new form or use Section 3 of the existing completed Form I-9. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new Form I-9.
    For an employee to be considered a “rehire,” the employer must be re-hiring the employee within three years of the initial hiring date of the employee, and the employee’s previous grant of work authorization must not have expired. Employers must:
    1. record the rehiring date;
    2. if the formerly listed work authorization has expired, write the document title, number, and expiration date of any eligible document presented by the employee;
    3. sign and date Section 3; and
    4. if the re-verification is recorded on a new Form I-9, write the employee’s name in Section 1.

    Of course, it may be easier just to complete a new Form I-9, and an employer can certainly opt for this. Note that the rules on returning employees also apply to cases of recruiting or referring an individual.

    3.6 What if a rehired employee is rehired after a new version of the Form I-9 is released?

    If the Form I-9 has been modified since the form was completed on the date of hire, the employer may complete Section 3 of the existing completed Form I-9 or Section 3 of the new form and attach the old form. The employee should provide documentation of continued employment authorization from the current Lists of Acceptable Documents provided in the Form I-9 instructions.

    3.7 What if an employee changes his or her name?

    An employee’s name change should be recorded by the employer in Section 3, although it is not mandatory to complete Section 3 for a name change. If an employee requests such, it is a best practice for the employer to request a document reflecting the name change, such as a marriage certificate or divorce decree.
    Reverification is often misunderstood by HR. Thus, it is important to know how to re-verify. It’s also important to know when not to re-verify. This is covered elsewhere in the book. The most important point on when not to re-verify is this – do not reverify after a permanent resident card, passport or driver’s license expires.
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