Wilson and Collier: Navigating the Form I-9 process amid ongoing delays

By Amy Wilson and Katie Collier

In the wake of COVID-19, U.S. Citizenship and Immigration Services (USCIS) has experienced, and is still experiencing, delays in processing applications, which can result in employees experiencing employment authorization gaps or employees or applicants providing unfamiliar documents as part of the Form I-9 process. This article explores how these unusual circumstances have increased the number of pitfalls employers can fall into while completing the Form I-9 process, such as: “What do you do with a Form I-9 when an employee is temporarily without employment authorization?”

As with most legal advice, it depends. If an employer terminates the employee and decides not to rehire them, the employer must comply with the Form I-9 documentation retention requirements. An employer must retain a former employee’s Form I-9 for three years from the date the employee began work for pay or one year from the date employment was terminated — whichever date is later.

If an employer terminates the employee and then rehires the employee when he or she obtains work authorization, the employer must either complete a new Form I-9 or, if the employee is rehired within three years from the date you completed the previous Form I-9, the employer may complete Section 3 (reverification) of the previous Form I-9. If the employer already completed Section 3 of an employee’s previous Form I-9 but is rehiring them within three years of the original Form I-9, the employer may complete Section 3 on a new Form I-9 and attach it to the previously completed form.

What if an employee or applicant provides a receipt notice or an expired document?

Some, but certainly not all, receipt notices or expired documents can be acceptable Form I-9 documents.

With limited exceptions, all Form I-9 documents must be unexpired. Yet there are a few exceptions, such as a lawful permanent resident (also known as green card holder) may present an expired permanent resident card with a Form I-797, Notice of Action, Receipt Notice of a Form I-90, Application to Replace Permanent Resident Card as a List A document. The Form I-797 extends the permanent resident card’s validity for 12 months from the date on the front of the card.

Similarly, with limited exceptions, a Form I-797, Notice of Action, Receipt Notice for a Form I-765, Application for Employment Authorization or an expired employment authorization document (EAD), will not be an acceptable Form I-9 document. Nevertheless, foreign nationals in certain employment eligibility categories who file a Form I-765, Application for Employment Authorization, to renew their EADs may receive automatic extensions of their expiring EAD for up to 180 days. To be eligible for an automatic EAD extension, the following requirements must be met:

The individual must have filed an application to renew her EAD before her current EAD expired (except certain employees with temporary protected status (TPS)), and the application must remain pending.

The eligibility category on the front of the EAD must be the same eligibility category on the individual’s Form I-797, Notice of Action (except employees with TPS who may have a C19/A12 combination).

The EAD renewal must be under a category that is eligible for a 180-day automatic extension. The eligible categories are published on the USCIS Automatic EAD Extension webpage. The categories currently eligible are as follows: (a)(3), (a)(5), (a)(7), (a)(8), (a)(10), (a)(12), (c)(8), (c)(9), (c)(10), (c)(16), (c)(19), (c)(20), (c)(22), (c)(24) and (c)(31).

An EAD that appears to be expired is automatically extended when the employee or applicant meets the above requirements and presents a Form I-797 that shows a timely filed EAD renewal application.

Additionally, a Form I-797, Notice of Action, receipt notice can be an acceptable Form I-9 document when it shows that an employee applied to, for example, replace a lost, stolen or damaged EAD. This receipt notice is valid from either 90 days from date of hire or, for reverification, 90 days from the date the employee’s employment verification expires. At the end of the receipt validity period (90 days), the employee must present the actual replacement document or other Form I-9 documentation from the lists of acceptable documents. If the employer accepts documentation other than the actual replacement document, the employer should record the document information on Section 2 of a new Form I-9 and attach it to the original Form I-9. The employer also should provide a note of explanation either in the Additional Information box on Form I-9 or as a separate attachment. The note should explain the situation and be signed and dated by the employer.

Beware of discrimination

Discrimination concerns may not be top of mind when completing a Form I-9, but 8 U.S.C. § 1324b specifically prohibits discrimination based on national origin or citizenship status in addition to the protections provided by Title VII of the Civil Rights Act of 1964 and any applicable state laws.

In the context of the Form I-9 process, employers can engage in a discriminatory practice when an employer, for example, requests an employee or applicant to provide specific documents, rejects documents that appear to be reasonably genuine, requests an employee or applicant to provide more documents than required, or treats groups of applicants or employees differently. Therefore, each applicant or employee must be able to choose which acceptable document(s) to present ((1) one List A document or (2) one List B document and one List C document). Form I-9 (and E-Verify, if applicable) policies should be applied consistently.

Best practices

While the Form I-9 process may appear to be simple or feel like an annoyance, incorrectly completed forms or discriminatory practices can lead to significant employer liability. As a result, employers should regularly review their Form I-9 (and E-Verify, if applicable) policies and procedures to confirm they are accurate and in compliance with the law, identify who is responsible for the Form I-9 process, conduct regular employee trainings (for those involved with the Form I-9 process) and conduct internal (or external) audits to confirm that the forms are being properly completed.•

• Amy Wilson is a member in Frost Brown Todd’s Indianapolis office who concentrates her practice in employment litigation and employer counseling for companies across all industries. Katie Collier is a senior associate in Frost Brown Todd’s Cincinnati office who has experience representing employers in employment-based immigration matters and in employment litigation and employer counseling. Opinions expressed are those of the authors.