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[Editor’s note: today, we’re posting the first in a series of blogs intended for those readers who are new to the wonderful world of I-9s or for those who simply need a refresher. Each article will explore a fundamental concept or step in the Form I-9 employment eligibility verification process and examine frequently asked questions or recent developments. We begin with timelines for completing the Form I-9.]

When we think about I-9 compliance, one of the first concerns which often springs to mind is the notion of deadlines. As indicated in the regulations and the M-274 Handbook for Employers, the Form I-9 has to be completed any time you hire a person to perform work or services in the U.S. But when does the form have to be completed? Are there different deadlines for the employee and the employer? Is there any wiggle room for meeting these deadlines?

So much for “the basics” right? Well, let’s see if we can clarify these rules and FAQs by analyzing excerpts from the regulations and M-274 handbook (both of which have been slightly modified below for clarity. See citations for complete text).

Section 1 Timing

Regulations: The employer must ensure that the employee completes Section 1 at the time of hire. See 8 CFR 274A.2(b)(i)(A).

M-274 Handbook: The employer must ensure that the employee completes Section 1 of Form I-9 by his or her first day of work for pay. Employees may complete Section 1 of Form I-9 at any time between acceptance of a job offer and the first day of work for pay. See page 3 of the M-274.

So what have we learned here? First, that the “time of hire” mentioned in the regulations has been defined to mean the first day that your employee begins work for pay. Based upon this, we have our first rule: employees should complete section 1 no later than his or her first day of work. We also learn that the employer can request that section 1 be completed prior to the first day of work as long as the job offer has been accepted. This is a frequently asked question which is thankfully clarified in the Handbook.

Section 2 Timing

Regulations: The employer, his or her agent, or anyone acting directly or indirectly in the interest thereof, must within three business days of the hire complete section 2. However, an employer who hires an individual for employment for duration of less than three business days must complete sections 1 and 2 at the time of the hire. See 8 CFR 274A.2(b)(ii) and (iii).

M-274 Handbook: The employer must fully complete Section 2 of Form I-9 within three business days of the first day of work for pay. For example, if the employee begins work on Monday, you must complete Section 2 by Thursday. If you hire a person for fewer than three business days, Sections 1 and 2 of Form I-9 must be fully completed by the employee’s first day of work for pay. See page 3 of the M-274.

What we have learned here? First, the employer is given 3 business days to complete section 2 (which as we know involves reviewing original documents presented by the employee that prove identity and work authorization). Second, in making the 3-day calculation, we do not count the first day. This guidance, often dubbed the “Thursday Rule” was announced last year and is now memorialized in the M-274 Handbook for Employers. Lastly, if the employee is hired for 3 days or less, the employer needs to complete section 2 on the first day of hire (an exception to the first rule above).

Frequently Asked Questions

Although the I-9 completion rules above seem fairly simple, there are (of course) many nuances and questions which frequently arise. Over the past couple of months, we’ve held several I-9 webinars during which many such timing questions were posed. Here are just a couple of the more interesting ones along with some food for thought:

1. We understand the usual deadline is the first day of work for section 1 and within 3 business days for section 2. We’re concerned, however, that our hiring managers and I-9 verifiers will not get it done on time. Can we establish a company rule that states that section 2 must be done on the first day of work?

As with many such questions, this particular nuance has not been addressed in the recent M-274 guidance or case law. On the one hand, it would seem reasonable from an ICE or enforcement perspective if the employer imposes such a rule in good faith as a means to ensure proper I-9 completion. On the other hand, some may argue that the 3-day rule was designed to give employees the opportunity to present their original documents or apply for a replacement document (e.g., lost or stolen), and this “company rule” would deprive them of that chance. Personally, I feel there is precedence for the notion that the 3-day deadline works in favor of the employer, rather than the employee, and an employer may successfully implement this plan if done uniformly. The best advice? Check with your counsel to ensure you’re implementing the right balance for your organization.

2. What happens if my business is open on weekends? Do those count as “business days” for purposes of completing the I-9?

Although we haven’t seen any guidance on this recently, historically the INS interpreted 3 business days to refer to days on which the employer conducts business. So if you’re open on the weekends, you would generally count those days towards your 3-day deadline. Now, you might say, well that’s great – but I don’t have an HR function on the weekends and it’s difficult for my line managers to complete the I-9. In that situation, I highly recommend you discuss your I-9 policies and practices with legal counsel to see if an alternate arrangement can be made. Some employers have successfully implemented policies which dictate that all hires must begin on a Monday or Tuesday.

3. How should an electronic I-9 system facilitate the tracking of the section 1 and 2 completion deadlines?

In choosing a system, you’ll want to inquire about 2 things: first, how will my I-9 verifiers know that there is an impending completion deadline? Second, does the system have checks and balances to allow supervisors to check up on the verifiers in the field to ensure that this is done in a timely fashion?


A well-designed system should feature a “dashboard” for your users so that when a hiring manager at a plant logs in to the system, they can instantly see that a new I-9 needs completion. Further, it’s important to adopt a system which can emulate your real world process as advised by counsel. So if you currently have a process whereby all I-9s should be reviewed by a supervisor before submitting to E-Verify , look for a system which has the flexibility to achieve that desired work flow.

Conclusion

On a very “basic” level, I-9 compliance is about managing deadlines and responsibilities. While the regulations and guidance relating to I-9 deadlines are fairly clear, there are still the inevitable “practice” questions for which there are no easy or established answers. As employers continue to analyze and revamp their I-9 policies and procedures relating to completion deadlines, remember these rules:

Rule 1: employees should complete section 1 no later than his or her first day of work.

Rule 2: the employer can request that section 1 be completed prior to the first day of work as long as the job offer has been accepted.

Rule 3: the employer must fully complete Section 2 of Form I-9 within three business days of the first day of work for pay. In making the 3-day calculation, do not count the first day. For example, if the employee begins work on Monday, you must complete Section 2 by Thursday.

Rule 4: if the employer hires a person for fewer than three business days, Sections 1 and 2 of Form I-9 must be fully completed by the employee’s first day of work for pay.

Rule 5: the I-9 form may appear white on your screen, but remember there are many shades of gray underneath! Contact experienced legal counsel with questions relating to company-wide policies or interpretations of business days, time of hire, etc.

Rule 6: electronic I-9 systems are designed to take away the “deadline headache” by providing you with the tools needed to manage these rules. Look for a system with a comprehensive dashboard, I-9 review/approval process, and the flexibility to emulate your best practices.

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John Fay is a former business immigration attorney with a unique background in designing and advising on immigration and I-9 practice tools. In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix.

Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions concerning how I-9 and E-Verify rules apply to your specific situation, please seek legal advice from a licensed professional attorney.


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