5 Things To Know When Managing Ongoing Eligibility To Work For Non-U.S. Citizens

Form I-9 and keeping up with reverifications

When hiring under H-1B, or other non-US citizens, a correct and complete Form I-9 is still required to confirm that employee’s eligibility to work in the U.S.  However, the employee’s employment authorization documentation may likely have expiration dates that need to be managed. The reverification of Forms I-9 can be a daunting task for any employer. It’s a complex requirement with many rules and regulations. It’s also a lot to keep up with, especially if an employer has a large number of employees who require reverification or if the employees are dispersed across the country.

Know When to Reverify

If an employer wishes to continue employing the individual after the employee’s employment authorization expires, the United States Customs and Immigraiton Service (USCIS) requires that the employer reverify an eligibility to work document for the Form I-9. Section 1 includes the date that employment authorization expires and Section 2 documents the date that the employment authorization document expires. According to USCIS, whichever date is EARLIER is the one used to determine when reverification is necessary. One way to help keep current on employee document dates is to use an I-9 Management service which can help track expiration dates and sends alerts to notify employers when it’s time to process a reverification for an employee.  

Adding to these complexities is the fact that some employment authorizations are automatically extended under the Temporary Protected Status (TPS) programs that can be granted for individuals from certain countries by the Secretary of Homeland Security. These designations can be automatically extended which would push out the reverification date. An electronic I-9 system should automatically extend these dates upon publication of an extension in the Federal Register.

Know How to Reverify 

Employers have options when reverifying the I-9. As described in a recent episode of the Workforce Wise™ podcast, they can use Section 3 of Form I-9, which is specifically for reverifications (as well as rehires and name changes). But if they’re more comfortable completing a brand new I-9, they can do that at the time the employee shows new documentation. It’s important to note that in both cases the employee’s document must be inspected in person. 

This is again where a digital I-9 solution can help employers.

Know What (or What Not) to Ask for 

Just as an employer isn’t able to request a specific document when they complete the Form I-9 the first time, they can’t specify a document for the reverification. In fact, it’s up to employees if they’d like to present a different document than they did the first time. The only requirement is that the document is listed on the USCIS List of Acceptable Documents.

Know the Risks

Ultimately, it’s the employer’s responsibility to maintain Form I-9 compliance. Failure to maintain reverifications can be a knowing employment offense fined from $583 – $4,667 for the first offense. And fines can dramatically increase for a second or third offense. And that’s not just civil, but can also be a criminal offense.

Watch for Changes

USCIS issues updates fairly frequently, and the pandemic has introduced, extended and expired temporary guidelines around Form I-9 over the past year. For example, additional information about List B documents was released in May 2020, while temporary Section 2 guidance - that applies only to employers hiring remotely - remains in place at least until May 31, 2021, and in January, USCIS updated details for completing Form I-9 for employees with extended work authorization under Deferred Action for Childhood Arrivals (DACA).

Like any HR process, employment authorization verification has its complexities. And like any complex process, there are innovative ways to help automate and guide employers and employees through the process. When it comes to reverifications, digital I-9 management services that ingest and adapt to changing USCIS guidelines are one of the better ways to help keep organizations aligned and up to date with changing guidance. 

Jason Fry is the Product Manager at Equifax. He has more than 20 years of experience in pre-employment regulatory compliance with a specific focus on employee screening and work eligibility verification. He is responsible for helping guide the strategic direction, compliance alignment and risk mitigation services for workforce regulatory issues, helping guide the development of Form I-9 and E-Verify product enhancements. Jason has worked for the U.S. Internal Revenue Service, Georgia State University’s College of Law, and the Clayton County Solicitor General’s Office.   Visit www.equifax.com Connect Jason Fry Follow @EquifaxInsights