This hour-long webinar is the second in a two part series, following I-9 Basics – Forms, Rules and Common Pitfalls. The video and accompanying transcript provide more nuanced information about the I-9 application process. For more information, download our complimentary 13-page guide to I-9 compliance and preparing for an audit. If you have additional questions about I-9 compliance or other business immigration concerns, contact our attorneys.
I-9 Advanced: For those with difficult questions that need answers
Transcript of Video
Hello, this is Mike Murray of Ford Murray. Welcome to our webinar series on I-9 preparation. This is part two of the series, hopefully, you checked in for part one. In part one, we covered a lot of foundational concepts, timelines, different standards for preparing I-9s. We looked at some different documents and so forth. Here in our part two, we’re going to dig a little deeper. We’re going to revisit some of the concepts that we talked about before, but go down to a deeper level of complexity. Here is our agenda. We’re going to first start about doing I-9s for work visa holders. I-9 is for citizens and green card holders are pretty straightforward, and we covered a lot of that in part one.
Work visa holders are a little more complex and has some special steps involved for the different types of visas. I’d like to walk you through that. We’re going to revisit concepts on reverification, and also talk about rehires. Last time, I promised that we would visit rehires, so I’ll deliver that this time around. We’re also going to talk briefly about the options a company has in the context of an acquisition or a merger of a company. What can you do, or what do you have to do in that context with your company’s I-9s? Then finally, we’ll talk about special issues that arise when you’re correcting your I-9s. When you’re doing an internal audit on your company’s I-9s, what are the thing that will come up that might throw you for a loop?
I also like to think of his as entertaining questions that we get from our clients when they are undertaking an I-9 internal audit. It would be a good time to pull out an I-9 if you have one available. If you don’t, we do have blowups of the different sections we’re going to talk about, so you should be able to follow, but if you do have those handy, go ahead and pull those out. Firstly, how do you complete an I-9 for a work visa holder? The work visa holders that I’m talking about are the ones that you see here. These are foreign nationals who have been sponsored by a company, perhaps your company, or a certain type of work visa. We have the H-1B specially occupation, the most common type of work visa that you can see out there.
L-1 intracompany transferee visas for multinational companies, E treaty trader and treaty investor visas for foreign national companies, TNs for Mexican and Canadian professionals, O-1 extraordinary ability visas, and F-1 visas, these visas are the usual cases sponsored by you, the employer. Perhaps, many of you have worked with us on getting this type of work authorization for specific foreign nationals. There are some different attributes that I want to go over here to walk you through how to properly complete the work authorization for these folks in an I-9. It’s just very different than what you would see for a U.S. citizen who was proffering a passport, or a foreign national that was proffering a green card.
You probably haven’t run across these types of documents before. Let me show you what these are, a work visa here on the left, and an I-94 record thereon the right. Let’s talk about what these are and what these mean in the I-9 work authorization context just for a minute before I show you how to fill out the I-9 with these types of documents. One of the biggest misconceptions that I see all the time in regards to the U.S. immigration law is the importance of a visa stamp and what it actually allows a foreign national to do versus what an I-94 record allows a foreign national to do. The visa stamp is actually a very narrow document. The only thing it allows the foreign national holder to do is to travel to our shores, go to the airport or border crossing, and ask to enter the United States in a certain visa category.
If we look at our sample visa here, and apologies for all the redaction, but we had to do that for privacy reasons, we can see there on the right that this visa type is an H-1B specialty occupation or professional worker. It was issued in Paris there at the top left, and the validity period is between the issue date of August 2015, and then the expiration date of June 2015. This document was put into the passport of the foreign national at the U.S. embassy or U.S. console overseas. The only thing it allows that individual to do is to arrive at the airport, present him or herself in front of the inspection officer, and then ask to enter the U.S. in H-1B category. Now, the second step that happens after that is the issuance of the I-94 record, that document there to the right.
That’s issued by the Department of Homeland Security through CBP, Customs and Border Protection. This document, the I-94, is the actual conferral of immigration status and related work authorization in the H-1B category. If we just step through this document, you’ll see that the first data point that’s blacked out there is the admission or I-94 record number, and we’re going to use that here in a minute. Most recent date of entry, the class of admission is H-1B. Then there is that admit until date, June 39th, 2018. That’s the date that the immigration status and H-1B work authorization for this foreign national expires. Just one heads up for you. You will see that this visa and I-94 are related. They’re owned by the same person.
The admit until date or the I-94 record is the same as the expiration date on the visa, June 2018. Many times, that won’t be the case. The admit until date especially for an e-Visa, but really just for about any kind of visa classification could be very different even by many years. It’s really important that you don’t rely upon the visa expiration for work authorization, I-9 purposes. I see it happen all the time. I’ll see copies of work visas such as the H-1B in an I-9 file. Really, this type of visa stamp has nothing to do with the I-9 process. It’s not an acceptable document on the list of acceptable I-9 documents. It’s not there, so stop yourself if you’ve been using this as a type of work authorization document. You need to be using the I-94 record instead.
Now, I-94s can look different. These are what we’ll call the old school I-94s. About two years ago, that new form was issued, and basically, what happens is that it used to be that the form there on the left, the I-94 record would be issued by the inspections officer at the airport, status conferred and stamped there onto the card. Those cards are no longer issued at the airport. Let me go back her just for a second. You now have to download your I-94 record from the I-94 download site. The employer can do that or the individual. Then put that print up with the passport as direct evidence of that person’s work authorization and immigration status. It’s an extra step now that the foreign national has to take when going through the airport.
You will still see this form on the right, which is the I-94A. That usually comes attached to what’s known as a form I-797, a document from immigration. That is an I-94 again that tells you the status and the validity period of someone’s status and work authorization. You’ll see here in a minute that these will be inputted. These data points will be inputted into our I-9 form. How do you input a work visa holder into your I-9? Let’s cover section one and section two. They just take you step by step as to how you would do that. This is section one, and as we covered in the first part of our series, this is the part of the form that’s completed by the employee. It has to be completed by the employee. They’re going to fill out that top section with all the relevant data, but what I want to walk you through is this middle section here.
When you have a work visa holder who is your employee, whether it’s an H visa, L, F1, they can only use one of these boxes. It’s always going to be an alien authorized to work until a certain expiration date. If you see the employee choose something else, as I mentioned in the last part of the series, it is the employer obligation to make sure that the employee gets that part one correct. You’ll have to redirect them and start the form over, or ask them to correct it, because that box four is their only option. Then in the blank there, box four, they’re going to input their expiration date. That’s going to be in most cases the I-94 record expiration date that we just looked at. Then you have to travel further down the form.
In many of the internal audits that I’ve done for colleges and for companies, they’ll prepare or the individual … It never get down to this part of the form. It’s just empty. This is getting down into the weeds, but if you have someone on the work visa, you do have to fill out this part, where the employee has to fill out this part of section one as well. For aliens authorized to work, provide your AR number or your form I-94 admission number. For the types of work visa holders, we’re talking about, again, it’s going to be that I-94 admission number record. If we go back to our I-94 cards here, you’ll see that record number or admission number across the top, it’s always the first data point on the I-94 card. It’s a bunch of zeroes on the sample on the left. Then it starts with A13 on the sample on the right.
Then going back to our new tangled I-94 records, the downloadable version, again, it’s going to be that first data point, which is blacked out there, the admission I-94 record number. That’s what’s going to be inputted there at point number two under the boxes. Then you have to go even further. It says here, “If you obtained your admission number from Customs Border and Protection in connection with your arrival in the U.S., include the following.” That is going to apply to a work visa holder. CBP means that they process their inspections at the airport or at the Board of Planetary, and so you’ll have to put in the foreign passport number and then the country of issuance. Then of course, the employee would sign in date, the certification below there.
Relatively straightforward, but you have to make sure the employee gets all the way down to the bottom of that section one if they are a wok visa employee. Now, section two is where the employer does its work. Let’s go box by box here to make sure that we’re doing this part right, and not too difficult. As I mentioned before, you’re going to make sure you put the employee’s name at the top in section one. We left it blank, but just a reminder to do that. Then a work visa holder is going to be under list A of the acceptable documents on your I-9. They’re going to be showing you their foreign passport as an identity document, and then the I-94 record as their employment document. Remember, it’s not going to be the visa. I see that here all the time as either an identity document or a work authorization document, but the visa is not an acceptable I-9 document.
Your document title is going to be your I-94 record, issuing authority, Department of Homeland Security. You’re going to put that I-94 admissions number that we just looked at as your document number, and then the expiration date that you see there on the I-94 record. Then you’d go down. Put in the start date, and sign section two of the I-9, and you’re done. Now, that was the easy part, and we’re going to get a little more challenging here. There are certain types of work visa holders who have different procedures that you have to follow. We’ll go over two of those, because you might see those a lot. One is H-1B portability, and the second one we’ll do is an I-94 and F-1 student worker. H-1 portability is a different type of H-1. This got to be treated a little differently.
If you have a work visa holder who you’ve sponsored to work at your organization, you’re going to follow the process that I just went through, and that I-9, or I’m sorry, that I-94 card that was issued to them is going to be the one that you requested in your I-129 petition. Your employer or you, your name is going to be on the 797 approval notice. You’ll be pretty intimately familiar with that one, and follow the procedures that I just talked about. Now, there’s also something known as H-1B portability. This is where you as the employer actually haven’t yet gotten approval for the new I-94 record or work authorization of the employee you’re looking to hire. That’s because a law called the American Competitiveness in the Workforce 21st Century Act, or we call it AC21 was passed, and it gave employees more flexibility for bringing on foreign nationals currently on an H-1B visa.
The rule there says that the employee can start at the new organization upon the filing of the H-1B transfer or portability petition. You don’t have to wait for the petition to be approved, and the new I-94 record to be issued under you and your sponsor. You can actually put the employee on the payroll at the time of the filing of the petition. Because of this rule, you’re putting a strange situation. You’ll have a set of documents on that first day of employment that have not been sponsored by you. They have been sponsored by some other company, and they could have the name of some other company there, but AC21 says that’s okay just so you file the transfer petition before the start of work, but then how do you complete your I-94 on your I-9 if you don’t have an I-94 that was issued sunder your company?
Well, the way to do it is very specific, and this is how you would do it. You ask for the acceptable documents, and the foreign national is going to get you the foreign passport and the current I-94 record that they have for their prior employer now that they’ve started working with you, and you’re going to take and input those documents just as I showed you with the passport as your first document on top, and then the current I-94 record from the prior employer in that second box there. The new thing you’re going to do in step one of this process is that you’re going to actually write with your hand AC21 and then the date. The portability or transfer petition was filed by your company into the margin on the left side there.
I haven’t quite fit in the margin so you can see it, and on your actual form, you’ll have a little more space to work with than what you see there, but you’re going to write that into the left-hand side. That’s step number one. That is good enough for getting the person on board, and following through with your I-9 obligations up to that point. If you’re the company that saves documents or caps the documents with your I-9, then you would want to have a copy of the receipt notice for the H-1B petition that you filed, or the FedEx slip to show proof to an auditor in the future. It may be that indeed, you didn’t make the filing properly and in the right timeframe. Then you would put in the start date, and sign section two below.
The second step that you’re going to take for an H-1B portability worker will take place after your petition has been approved. Once you get that new approval notice, it’s called the form I-797, in the bottom right corner, you’re going to have a new I-94 record. Then you’re going to complete step two for this H-1B portability worker. You will actually use section three of the I-9. You’re going to input and see there that the new document title that you’re inserting as a reverification really technically is an I-94 record. The new admissions number, which in many cases, will be the same as the prior one, but whatever number is at the top of that I-94 record, you put it in there, and then the expiration date of the new I-94 card, which here is three years into the future, and then you would date, and sign and print your name as the employer at the bottom of section three.
Then you’ll be done with your H-1B portability I-9. Hopefully that was clear. There are quite a few steps there, but you just have to follow those instructions for doing that type of I-9. We’re going over this because this is not intuitive whatsoever. There’s no way you could work your way to the form to figure out how to do that. You just have to follow the latest guidance from immigration on how to properly do that and not get fined. Now, let’s tackle our last form of work visa holder in F-1 student. F-1 students are foreign nationals here at the university, college, or high school who have been issued an F-1 visa to attend full-time course work at one of these institutions. There are different ways or methods that an F-1 student can work.
They can work on campus part-time for their university, and no special endorsement is needed to do that. They can do CPT, which does require an endorsement by the university, and then an authorization on something called the 920 form, which I’ll show you. Then there’s also OPT, optional practical training, which is a term of work, and a work card will be issued for that after your graduation from the university program. Right now, we’re not going to talk about optional practical training. We’re just going to talk about those other types of F-1 employment, and how to complete those on an I-9, but we will take a look at an employment authorization document a little later, so you can put your eyes on that.
If you have an F-1 student who wants to work with you, even if it’s a student at your university, you do have to complete an I-9 form. All employees have to complete I-9 forms if they were hired after 1986, and that’s going to be the case for just about everyone. Again, like the prior examples I’ve showed you, number four, box number four, and that’s section one, is going to be your only option as to the working student, but the student is going to put something a little bit different in that work until date. Instead of a date, they’re going to put DS, those words DS. The DS should also be on the I-94 record. It’s not always there, but probably will be there. I’ll explain to you in a second what DS means, but that’s what you’re going to do.
Just like the other work visa holders, you’re going to make sure you go down and fill out the rest of the section one, or let the employee does that, because that’s what’s required when you have a work visa holder employee. In section two of the form for F-1 students, you’re going to do this similarly to the other work visa holders, but with a couple exceptions. In list A, you’re going to have the German passport as the identity document. Just a quick reminder, you see the expiration date there of the passport of 03/15/2020. As we covered before in the first part of the webinar series, it has to be an unexpired identity document. If not, that is not acceptable. Going down to the employment document, you’re going to put in your I-94 record, issuing authority, DHS, your document number, which again you’re going to take on the I-94 record.
Then you’re going to put again those letters DS expiration date. DS stands for duration of status, and basically, what that means is that the student’s status is good just so long as they’re abiding by the F-1 visa regulations, and are in good proper status as an F-1 student. The reason there’s not a date certain there is because programs that are authorized can change in terms of how long they take. Initially, a student may get an F-1 visa or an I-20 for two years or four years. They might finish their program early, or they might need an extra year. That’s why the immigration authorization is a little more flexible. It’s DS, duration of status, rather than a hard date or date certain.
Then finally, you’re going to do something you haven’t seen before. You’re going to fill out that last third box under list A. You’re going to input something called an I-20. Here is an old review of an I-20. Again, sorry for the redaction for privacy purposes. This is the form that’s issued by the school to the student. It’s called the certificate of eligibility. This is the basis for the foreign student to get the F-1 visa overseas, and then to enter the airport and attend school, and also to work on the different types of work or status that a student can do. The issuing authority here is the Department of Justice. Then the document number that you’ll input is not so obvious. If we go back to our I-20 here on the first page, in the top right, you’ll see this, and then below that student copy, and then below that, it’s redacted here, but that is going to be the … see this number, and that’s going to be the document number that you’re going to want to input into that third line and the third box.
Then finally, we actually will have a date certain. There is an expiration date there. Here, you’re not going to put DS. Immigration has told us that instead, they want us to put the date that is the program and date, which you’ll see circled there on line number five, December of 2016. That’s the date you’re going to put for the expiration date of that I-20 as you see it circled. If you’ve done that, then you’ve actually completed all three boxes of list A, which is what I like to call the full monty of the I-9. Not everyone gets to do it, but if you do, count yourself lucky. Then as the employer, you will put in the first day of employment, and certify by signing and putting your name in the bottom of section two.
We finished the tricky issue of how to input work visas and I-94s into our I-9s. Now, let’s move on to some different concepts. Let’s go back and touch upon reverifications. We talked about that a little bit in the first part of the series, but let’s dig a little deeper. A little bit of a review here, it’s the employer’s responsibility to make sure that you’re reverifying on time. You can’t just trust that the employee or rely upon the employee to give you a new set of work authorization documents if he or she has a set that’s going to expire. You as the employer, you have to track that, and you’ll want to develop a tickler system as I walked you through in the first part of the series, and month to month make sure that you’re keeping track of those types of work authorization for employees that are going to expire, and giving them notice ahead of time. That’s, “We’re going to need to see a new document by this date in order to keep you on the payroll.”
Remember, you’re only re-verifying work authorization documents. You’re not reverifying identity documents on list B. If you find yourself asking for new driver’s license or military IDs, stop, turn around. Don’t do that, and make sure you’re just asking for new work authorization. Generally, the employer has to reverify and get that new type of work authorization in hand before the current work authorization expires. I’m going to walk you through two different types of work authorizations that need to be reverified, and that expire, and generally, you’re going to want to remind the employee at least 90 days in advance that this deadline is coming up, and they should start taking whatever actions they need to give you that new work authorization before the current one on file expires.
Now, what has to be reverified and what does not have to be reverified? This is a short hand for you to remember. It doesn’t cover every single type of work authorization, but it should cover about 95% of what you’re going to see. A U.S. citizen never has to be reverified. That’s because citizenship is permanent. Even though most passports are only good for five years or 10 years, that expiration doesn’t mean as we know that the status expires. It’s just the document that expires. Just so that document is valid at the time that you use it for I-9 purposes, it’s fine. You never have to reverify that person, and you don’t have to put them in your tickler system, so you’re really done with the I-9 obligation for that person.
For green card holders or permanent residents, it gets a little trickier. Permanent residents is a pretty permanent type of status as the name might tell you, but that’s not always the case. There’s something that I will call a permanent, permanent residence. In that case, the individual is going to be given a 10-year green card very much like the one that you see there on the bottom left. There’s another type of permanent residence called conditional permanent residence. That is only given in a two-year validity period, and there is no guarantee that that individual is going to get additional permanent status after the two years expires. Even so, there is a general rule of thumb that you follow when it comes to green cards. If you have a plastic green card as an I-9 document, you do not have to reverify that document.
You do not have to put that person in the tickler system. That’s counterintuitive to me, because as I said, the 10-year card is permanent. That makes sense that you wouldn’t reverify, but the two-year card is conditional. In fact, the card after the two-year period may or may not be issued, but even so, if it’s a plastic card, and that two-year card would be a plastic card, you don’t have to reverify that. Then just a reminder that list B identity documents, you’re never going to reverify those. Now, just to make it a little more complex, there’s another type of evidence that you can accept for permanent residence. That’s that stamp that you see there on the bottom right.
That’s called an I-551 stamp. That’s going to be stamped into a person’s passport, and along with the photo ID in that passport. That’s absolutely an acceptable I-9 document. That kind of status is usually issued for a year. Sometimes, you might see two years, but that type of permanent residence does have to be reverified. That’s an easy way to distinguish between the two. Other types of work authorization that will be reverified, and we’re going to talk about this in a little more detail, an employment authorization document or form I-766, and the work visa holders that we talked about before. All of those will certainly have to be reverified.
This is an EAD. This kind of document, you may see a lot of especially if you’re at a university or an international company. The EAD can be issued to a student as I mentioned who has OPT, who’s graduated from a program, and given a term of open market work authorization. This same card might be issued to someone who is waiting for a green card called an adjustment applicant, and might also be issued to someone who’s in temporary protected status. A lot of different categories of individuals would get this card, and these cards usually expire in a year or two years. If you see this card in an I-9 context, you certainly will have to put this person into your I-9 reverification tickler system.
Now, the thing to remember here is that you may not continue to employ an individual unless they show you a new valid card before the current one expires. The individual has to have the card in hand. A lot of times, clients will say, “Well, doesn’t the receipt will apply? Just so the apply for the card, don’t they have an extra 90 days to work until the card comes in?” The answer is no. The receipt does not apply to this kind of document. The receipt really only applies to documents that have been lost, stolen, or damaged. We covered that in part one of this series. This can be confusing, but when you see this type of card, that extra 90 days does not apply. Now, it usually takes 90 days to get this card. That’s why you have to remind the employee that they need to apply in advance at least 90 days in advance.
You can apply six months in advance, because if that new card doesn’t come in before this one expires, then the person will have to be taken off the payroll until the new card comes in. That can be painful for the individual and also for the company you work or the university. That’s a thing to remember as to employment authorization documents. Now, very differently, work visa holder in the context of I-9 reverifications were handled very differently. We’re going back now to talking about these specific categories, H, LBS, TNs, O-1s, Ps, Es, and E2s. We’re not talking about F-1 students here, but for these types of work visa holders, it is not required that the new I-94 record, which is going to be the work document that we’re talking about, it’s not required that the new I-94 record be issues before the current one expires, so exactly the opposite of what we just talked about.
I know very confusing. That’s immigration law and I-9 law. The reason that is because there is a regulation, which tells us that it’s good enough for the sponsoring company or university to apply for the extension of this individual status just so it’s done before the current I-94 record expires, just so you make that extension filing time, the law says that the employer has an extra 240 days to employ this individual until an extra time for the new I-94 record to come in. The trick here is to make sure that you put in your extension petition, again, in advance. You can file up to six months in advance, but you certainly have to do it before the current I-94 expires. If you do, then you bought yourself an extra roughly eight months of work authorization with that individual.
That can be a nice saving grace. Now, how would you input this kind of extension, this automatic extension work authorization into your I-9? Again, going back to the H-1B portability scenario, you won’t have a new work authorization document under list A, B, or C to input into your I-9 and for reverification. How do you do it? Again, it’s not intuitive. It doesn’t really fit into the form, but this is how the government tells us that we have to do it. Similar to AC21, what you’re going to do is pull up the I-9, and you’re going to write in the margin on the left-hand side that you’re using the 240-day extension by putting in that text there, 24-day EXT period. Then you’re going to put in the date, which is going to be the date of filing of the extension petition, the I-129 petition that you lodged.
That date should be before the expiration date that you see there in the second box of list A. If you do that, then you got the extra 240 days. That would be step one. Then step two is going to be when the extension petition is approved. The new I-94 record will be issued on your form I-797, and you’re going to use section three, reverification, to input the I-94 record, the I-94 admission’s number as a document number, and then the new expiration date, which here is an extra years of status. Put your name, date, and sign there at the bottom, and you had finished your reverification.
Let’s move on to a new concept, rehires. I skipped this last time, because it’s just a little different than the other sections, but let’s dig into it now. The government here is trying to help employers by not having to do a new I-9 in certain situations. The applicability here is relatively narrow, so there is this section three on your I-9. We just looked at it for reverifications. You can also use it for rehires. You can only use it though for rehire, someone who has left the company, been terminated, or separated, and then comes back later. You can only use this section three, and not do a new I-9 if that person is rehired within three years of the completion of the initial I-9 so that initial start date. A lot of people think that it’s within three years of when the employee left the company. That’s not the case.
You can see the window I’ve used here is relatively narrow, but it is there as an option. If that applies to your employee, then instead of doing an I-9, what you would do is pull out the existing I-9 on file. You want to check it to make sure that it was done correctly. You also want to make sure that whatever work authorization was proffered previously has not expired, so if it’s a U.S. passport, you’re good to go, but if it’s work visa holder or an EAD holder, then you may need to reverify using the reverification here in section three as well, but in the case where let’s say a U.S. passport was offered, the only thing you’d have to do for this rehire if the rehire happens within three years of the initial I-9 execution is what you see here in our sample, and that box B, you would put in 9/15/2015 as the date of rehire.
Then you would sign, date, and print your name at the bottom. This I-9 for that employee would be done. You can see that during rehires, if they fit, the standard is pretty darn easy. Now, employers have another option. Instead of using this section three for a rehire, you can actually choose to just do a new I-9 if you wanted to. Why would you want to do that? Well, if you have a lack of confidence that the I-9 program before you took it over is not in the best of shape, and you had problems with those all I-9s, if you’re using the existing I-9 for a rehire, then you’re doubling down on what was done on that initial I-9. If that initial I-9 doesn’t look good, there could be some penalties and fines wrapped up in that I-9 that you’d rather walk away from.
If your policy instead is to do a new I-9, then you would at some point be able to purge that prior I-9, and get it off your books. We talked about that in section one, purging and all the retaining I-9s that you need to. Some employers decide to do a new I-9 in order to separate from prior I-9 preparation, which is a very valid reason to make that as a policy, but like with any kind of policy in I-9s, you have to be consistent as an organization. You need to think about what’s the best approach for us, and then you want to write that down, and make sure that you do that consistently for all the I-9s that you’re preparing to do in the future. Now, certain situations are not rehires at all. Certain situations were actually for I-9 purposes looking at a continuation of employment, and so no rehires needed on the I-9.
No I-9 is needed. I just want to clarify some of that, because we get these questions from time to time, so things like approved or unpaid leave just so as approved, or trying to leave, vacation, or even visibility, those would not constitute a rehire, so section three does not need to be completed. A new I-9 is not needed to be completed. Promotion, demotion, strikes, or labor disputes, same type of thing, the I-9 is already done. Transfer within the same department, I’m sorry, a different department in the same company, you don’t have to do an I-9. That I-9 applies to the entire organization so you’re all set. Then seasonal employment with the expectation of continued employment, so for example, coaches at different schools will work sometimes seasonally, and would get to the question, “Well, do we have to do a new I-9 every year because this coach only works with us for, let’s say, four months out of the year, and then they’re not here until the next season?”
Michael Murray: It depends. You have to drill down into the box of that situation, but basically, if there is an expectation and understanding that it is continued employment, because this coach will be rehired next year and every year after until they decide not to, then you don’t have to do an I-9, but on the other hand, if a new hiring decision is made at the beginning of the season or every year, then that’s not an expectation of continued employment. Then a new I-9 would have to be done. Even if you had the same coach for five years, that person is basically being rehired every season, then you would have to do a new I-9 each time as onerous as that might be.
Michael Murray: All right, a different concept that we’ll just talk about briefly, I-9s and the context of mergers and acquisitions. If your company is being merged into another one, or if you’re purchasing another company, and fully get into your own, what do you do with the I-9s? You might have a set of 300 or thousand I-9s, and all of a sudden, they’re yours. What do you have to do in that situation? Well, the employer has two options. First, you can treat the employees as new hires, which means that you’re going to complete new I-9s for all of the acquired employees. If you choose to do that technically, the date of hire for the I-9 is going to be the date legally that the acquisition was completed or made effective. That’s the date that you would have to start that I-9 obligation under the rule that says that you have to start at the first day, and complete it within three days.
That could be a heavy lift. If we’re talking about 1,000 employees, and then 1,000 new I-9s, so you have to be prepared for that kind of obligation. The second option for employers is to treat the employees as continuing and uninterrupted employment. You could simply move over the I-9s of all the acquired employees, and make them your own. The caveat there though is that any errors, any liabilities or omissions, penalties shoddy completion of I-9s will be assumed by the new employer. As I showed you before, the fines for an I-9 program that has gone awry for several years can get up to the millions of dollars. They can be really high. Many fines are at least in the tens of thousands if not hundreds of thousands. You’re talking about a big ticket item there.
This is why a lot of companies would choose option one even though it’s the harder one. Basically, you get a clean slate. You can start over, and you can separate yourself from a bad prior I-9 program. The best thing to do here if you’re a company that’s going to be the acquirer is to do some due diligence ahead of time, and actually take a look at the I-9s to see which way you’d want to go. Of course, when we get this question, it’s usually after the fact, after the organization is already completed, and did the merger acquisition, and then they start thinking about the I-9s. Sometimes, that option one is gone, because the acquisition date has already passed, and now you’re doing late I-9s, so perhaps you’re just stuck for that option two in whatever state those I-9s happen to be in, so certainly an item that you want to think about in advance or ahead of the corporate change, and think it through very carefully.
Our final topic here is special issues that arise when correcting I-9s. I recommended before that doing internal audits at your company or university is a really good thing to do, because you can correct technical violations. You can create I-9s for folks who don’t have them. You can fill in gaps that will reduce greatly your liability if you get audited. That’s why you’d want to do that. You would also want to go through and make sure that you’re not retaining I-9s for employees who are no longer there, and or eligible to have their I-9s purged or terminated under those rules that we talked about. It’s certainly a good thing to do, but when you do that, when you do the internal audit, you want to make sure you do it in the right way.
We do have a separate webinar on conducting an internal audit, so go ahead and check that out. That’s something you want to do. I want to go over though just some broad principles and then some specific questions that we often get when a company is doing that internal audit. This was asked to me after the first I-9 basics webinar that we did last month. Can we as an employer go back and make changes to that section one on behalf of the employee? The answer is no. That section one has to be completed by the employee initially. Then if there are corrections to be made to that section one, the employee, him or herself has to make those corrections, and sign and date the correction as I walked you through in part one of the series.
Then in section two, the employer section, the initial administrator or person in HR, or a legal who completed the I-9 should make those corrections, and sign and date their correction if that’s possible. If that person is gone, then whoever is responsible for I-9 preparation now would go ahead and take those steps. Here is the final part of the webinar, and my favorite part, titled Things that are Likely to Throw You for a Loop During an Internal I-9 audit. I also like to think about it as entertaining questions that we often get from our clients when they’re going through an I-9 audit. I’m just going to throw this out there, because these will cross your minds as you’re looking at your I-9s. I mentioned before that I-9s quite often will be wrong.
If you’re going to do an internal audit at your company, you will find the stakes. You will find violations many times that you can correct, but they’re going to be there. There’s no such thing as a perfect I-9 program. I’ve never seen it. Usually, at least half of the I-9s need some major surgery, if not, much more. Here are some of the questions that we often get. I’m looking through our I-9s. Some employees don’t seem to have an I-9 at all. Is that okay? Probably not okay. It’s only okay if that employee was hired before the I-9 obligation became effective, and that was on November 6, 1986. Anyone hired after that date, and is an active employee of the company has to have an I-9 on file, no exceptions to that.
If those employees were hired after that date, then you need to do an I-9 really as soon as possible to try to correct the lack of an I-9. There is an answer to that question. Now, here is the opposite question that we often get. Why does this employee have more than one I-9? Sometimes, we see two I-9s. Sometimes, we see three I-9s for one employee. Probably, that’s a mistake or not. Is it a rehire? It could be a rehire. If so, probably their prior I-9 needs to be purged, and you would have to do that purge analysis that we walked through, but that could be one reason why you have more than one I-9. Was it due to a merger or acquisition? Did you decide to do new I-9s, and then retain the old I-9s? If so, then you need to determine if you can get rid those old I-9s.
It’s always good to get rid of them if you can under the role, because its potential liability is just vanishing, which is always a nice thing. It makes lawyers smile. Is it a prior I-9 audit gone wrong? This is usually the likely culprit, or this is the usual culprit here. When you do your I-9 audit, it’s important to make sure that one, you’re doing it correctly, but two, that if something really strange happens to an I-9, or you’re recreating I-9s for individuals, you want to explain why you’re doing that. You want to put a memo on that I-9. That just walks whoever is reviewing it through exactly why you took that action, because the correction that you make today may not be understandable to the person looking at the I-9 five years from now.
You may not be available, or you may be available, but you forgot. You forgot why you took that action, and of course, the person reviewing the I-9 at that point could be a federal officer. I say and they’re really going to want to know why there’s more than one I-9 for a person. That’s usually not going to be correct. There is the answer to that question. I’m looking at this I-9, and the employee says he is a U.S. citizen, but I see a copy of a green card. Is that okay, because apparently, he’s a permanent resident? That’s work authorization, so are we fine? We’re not fine. If you remember, the employee will complete that section one, and they will have to tick the box to say, “I’m a U.S. citizen, a noncitizen national, or a permanent resident holder, or a work visa holder.”
If they chose the wrong one, and that appears to be what happened here, because if you see a copy of a green card, and that person was a permanent resident at the time of the I-9 preparation, it could be that the person clicked their own box. I do see that often, that the foreign national just thinks the term U.S. citizen and legal permanent resident is interchangeable when certainly it’s not. In that case, you’re going to have to correct. Then the follow-up question will always be, “Well, can I just correct it, because now we see the card, and we know he’s a permanent resident? Can I just change the box that was clicked? I’ll sign it, and I’ll date it, so the government know we did.” The answer again is no. If it’s in that section one, then it’s the employee who has the obligation to make that change, and to sign, and to date.
Start dates of employment are missing on a lot of form, on a lot of our I-9s on section two. What should we do? Usually, the follow-up to that is we know all the start dates, because I have this spreadsheet, and it tells me when everyone started work, so can we just write those in? You don’t want to just write them in. You don’t want to make any step. It makes it appear that you’re trying to pull one over on the government, and make it look like you did it right the first time. It would be very easy to do that, but that’s really compounding the problem, and making it a bigger problem than it was. What you’ll want to do is determine the real start date according to your employment records. Then put those start dates into the right blank.
Then initial and correct, or initial and date, those corrections, it’s making it very clear to the government when you made the change. Now, that’s going to be a violation, because that date should have been entered when the I-9 was prepared initially. Now, what you can do about that is you may get some credit if you go and put that in there, clearly showing that you did after the fact, and that you are just trying to close up the holes in some of your I-9s. I-9s, I see some here that show a driver’s license and a social security card that states it is not valid for employment. Is that okay? If you’ve looked at different social security cards, you probably know that there are different types.
There are ones that are just straightforward card, but no warning language on top, and then there is series of different cards that have warnings such as not valid for work authorization, or only valid with DHS authorized or work authorization issued, something along those lines. It’s easily missed. The employee doesn’t read it, doesn’t know that there is a restriction there. The employer looked up the card quickly, and didn’t realize it. That I-9 is going to have to be corrected, and you’re going to have to ask the employee to prop for another acceptable document from the list of acceptable documents, because even though it is an SS card, that restriction disqualifies it as an acceptable document. That I-9 is going to have to be revisited, and new documents are going to have to be looked at.
Finally, my last and my favorite question, which goes to the zaniness of what the government can do on occasion. We have many Spanish speaking employees. Some of our I-9s are on a Spanish version of the form. Is that okay? If you’re in Florida or California, or New York, or Arizona, or another border state, you may have employees who don’t speak great English, and they would love to fill out a Spanish version of the form. If you go to uscis.gov, and pull down an I-9 form as I recommended that you do in the last webinar, you’re going to see that there is a Spanish version there. You would probably using your common sense, and say, “Wow, this is really helpful. I have a lot of Spanish-only speaking employees. I’m into construction. Let me go ahead and use this. This makes it easier for everyone.”
Probably not okay, unless you are located in Puerto Rico, that’s the only time you can use that Spanish version of the form if your employer is located in Puerto Rico. Probably, it doesn’t apply to anyone on this webinar. The utility of that Spanish version of the form is very narrow. You can use it as an interpretation tool so that the employee can read along there, and understand what they’re doing, but you should not use it as your actual I-9 unless you are located in Puerto Rico.
Thank you for attending our I-9 preparation webinar series. I hope you enjoyed it. I hope there were some helpful tidbits for you there. If you have additional questions, go ahead and send those to us, and give us a call or email us. If you like a copy of these slides, just send me an email or one of my teammates an email, and we’ll get that right out to you. Thank you for your attendance, and have a great day. Ba-bye.